Michael Ratner Video:  Missing CIA Tapes, Torture and the Supreme Court
http://www.truthout.org/docs_2006/122007J.shtml
Truthout’s Matt Renner interviews acclaimed human rights lawyer Michael Ratner about the destruction of CIA interrogation tapes and his work on behalf of prisoners in the so-called War on Terror.

December 14, 2007 7:30 PM
http://commentisfree.guardian.co.uk/michael_ratner/2007/12/the_fear_of_torture.html

As we all now know, the CIA has destroyed hundreds of hours of video tapes of the likely 2002 water torture of three men, allegedly involved with al-Qaida, by its agents. Although the CIA has not acknowledged that the videos are of water torture - often known euphemistically as “waterboarding” - a former CIA agent, John Kiriakou, has said that the waterboarding was authorised from the highest levels of the Bush administration.

Now we are seeing the usual Washington scrambling and casting of blame after another serious revelation of torture. Most of the official focus seems to be on who made the decision to approve the destruction and not on the underlying issue: the fact that the Bush administration, with the apparent consent of some of the congressional leadership, sanctioned torture.

This endorsement was criminal under both US law and international law - and that opens high level administration officials to prosecution, whether in the US or abroad.

This fear of prosecution for torture is the best explanation as to why these tapes were destroyed. They would have been vivid and compelling example of the violation of laws against torture - laws that in the US carry a life sentence or the death penalty if the victim is killed. Laws in most European countries make such violations of the convention against torture a universal crime, prosecutable no matter where the torture occurred or where the torturer resides.

Another explanation for the destruction might be the anger the footage could engender in the Muslim world if they were revealed publicly. However, the chances for public revelation were slim. Unlike the Abu Ghraib prison photos, these tapes were apparently only in the possession of the CIA. That explanation lets the CIA and the Bush administration off the hook much too easily and ignores evidence that fear of prosecution was likely critical in the destruction decision.

CIA head Michael Hayden’s explanation is patently absurd: he said that he feared for the safety of the CIA agents involved if al-Qaida saw their identities. Apart from the ability to shadow out the faces, what are the real chances that someone in al-Qaida would see the tape and be able to identify and track down an agent?

The fear of prosecution best explains the destruction of the tapes. That fear has governed numerous actions of the Bush administration regarding the torture program. The earliest legal memos from the Bush administration, as long ago as January 2002, were explicit on this issue and advised not applying the Geneva conventions as a means of avoiding prosecutions that could follow from their violation. The McCain amendment builds into its prohibition on cruel, inhuman, and degrading treatment a defense for authorized interrogation practices and those that relied upon “the advice of counsel.” The Military Commission Act of 2006, passed after the destruction of the tapes, forgives past violations of the Geneva conventions by officials involved in the torture program. So we have Congress, and not just the Bush administration, attempting to absolve clear violations of law.

This explanation also makes sense considering the risk that arguably was taken by destroying the tapes: they were relevant to a number of proceedings including the Guantanamo federal cases, criminal trials, the 9/11 commission and a federal freedom of information act case. Hayden tries to claim otherwise, saying they were not relevant to “any internal, legislative, or judicial inquires.” Yet, orders had been entered in those cases prior to the destruction mandating preservation or release of such information.

Now, those responsible for the destruction are facing contempt of court and possibly other sanctions. The tape destroyers and their superiors had to be very worried to run this risk. Unfortunately, we will never know what these tapes show. It is doubtful that anyone would question that waterboarding was torture if the tapes were seen. The tapes may also have much higher level officials observing the water torture then we now realize. Former US secretary of defence Donald Rumsfeld was involved in the torture of Guantanamo detainee Mohamed al-Qahtani, and was likely involved in others.

So why, if there was such a fear of prosecution by officials, did they video hundreds of hours of these interrogations in the first place? Hayden says it did so to insure that the CIA proceeded “in accord with established legal and policy guidelines.” This seems farfetched. Would the CIA or the Bush administration take the huge risk of making such videos when the tapes could lead so directly to a prosecution?

There is another, more plausible, explanation. It is likely the tapes, or some version of them, were to be used as a threat against those who were waterboarded and others whom the CIA or US officials wanted to interrogate. Videos and photographs of the humiliation and powerlessness of those tortured could be used as threats to get other detainees to “cooperate” and could even make informants of some detainees to be released - under threat that their “cooperation” or “humiliation” could be exposed. This also explains why it took so long to destroy the tapes. If they were just done to insure compliance with guidelines, why not destroy them a short time later?

In the end for the CIA and the administration the destruction of the tapes, despite the fallout, was better then the alternative of the potential criminal prosecution of both CIA and high level executive officials. The front page scandal we are dealing with is about the destruction of the tapes and not the criminal conduct that underlies them.

The Bush administration can and will weather, as they have before, the fallout and finger pointing from this scandal. A few congressional inquiries and some internal investigations from Congress, possibly a scalp or two of a mid-level official, and that may well be the end of the matter. This outcome is more or less assured - in part because of Congressional involvement in tacitly approving the techniques and possibly the destruction itself - because the best evidence no longer exists.

Excerpt From Michael Ratner Speech on Acceptance of Puffin/Nation Award

December 10, 2007

In accepting this remarkable award I do not stand here alone.

I stand with the generations that have gone before—those particularly at the Center for Constitutional Rights that have always been willing to upend the status quo and take personal and political risks.

I stand especially on the shoulders of our founders of 40 years ago—William Kunstler, Morton Stavis, Arthur Kinoy, and Ben Smith.

And one, of almost that generation, Peter Weiss—is here tonight –the architect of our efforts to bring Rumsfeld, and other administration criminals, to justice in Europe.

I also stand here with current and future generations as well—the people of CCR , led now by Vince Warren, our Exec Director. They are doing the most difficult work, at Gitmo—and around the world—Heroes—all.

In some ways my greatest achievement at CCR is the confidence I have that they are– and will remain–as Alexander Cockburn said of my CCR generation—-

A Splendid Band of Tigerish People—-

Over the last few years I have become acquainted with Henri Alleg, a French Algerian, in his 80’s who was water tortured —or as this administration says—water boarded by the French.

Here is how he described his water torture—a practice that goes back to the inquisition—

The rag was soaked rapidly. Water flowed everywhere: in my mouth, in my nose, all over my face. … I tried, by contracting my throat, to take in as little water as possible and to resist suffocation by keeping air in my lungs as long as I could. But I couldn’t hold on for more than a few moments.

I had the impression of drowning, and a terrible agony, that of death itself, took possession of me.

Think about Henri Alleg – when you hear the CIA talk about “enhanced interrogation techniques”—or think about– a terrible agony, that of death itself,— taking over you– when you hear our new AG refuse to condemn water boarding, or when you hearthat some of our democratic leaders were briefed—and made not a peep of objection.

Let there be no doubt– the Bush administration tortures; it disappears people; it holds people forever in off shore penal colonies like Guantanamo, it renders them to be tortured in other countries—this is what was done to CCR’s client Maher Arar who was rendered to Syria for torture.

And sadly a majority of our congress, our courts and our media have given Bush a free hand, and in fact, worse, have been the handmaidens of the torture and detention program.

But it has not been given a free hand by us at CCR

Today we are in the midst of a pitched battle—a pitched battle to put this country back —at least ostensibly–on the page fundamental rights and moral decency.

The battle is difficult and the road is long and hard— On occasion I get pessimistic.

Sometimes I and my colleagues feel like Sisyphus.

Twice we pushed the rock up the hill and won rights for gitmo detainees in Supreme Court and twice the rock was rolled back down by congress.

So we pushed back up again—5 days ago we were in the Supreme Court for the third time.

It was more difficult because the justices have changed—4 are antedeluvians—lost forever to humanity.

But we have had our victories.

1. We have gotten lawyers to Gitmo, stopped the most overt torture, and freed half the Gitmo detainees—over 300.

2 . We have gotten Maher Arar out of Syria; Canada has apologized, and said he was an innocent man, but he remains on the US terror list.

3. We have slowed, but not yet stopped, a remarkable grab for authoritarian power.

I also don’t lose hope because I think about the early days of the Gitmo cases.

At first we were few—but now we are many—

At first when CCR began we were the lonely warriors—taking on the Bush administration at Gitmo.

Now we are many—now we, just on Gitmo alone, are over 600 lawyers.

Most from major firms; they are of every political stripe.

Understanding that what is at stake—is liberty itself.

This struggle will be seen as one of the great chapter in legal and political history.

——————————————————–

Today, War, torture, disappearances, murder, surround us like plagues.

Most of this country goes on its way—oblivious.

Some don’t want to know, and are like ostriches.

Some want to justify it all.

Some want to make compromises.

But be warned–We are at a tipping point—a tipping point into lawlessness and medievalism.

We have our work to do.

For each of us—the time for talking is long over.

This is no time for compromise or political calculation.

As Howard Zinn admonishes us:

“It is the job of thinking people not to be on the side of the executioners”

The Puffin/Nation Prize reminds us all– that the job for each of us is-–

Not to be on the side of the executioners—

Thank you all.