From Magna Carta to Abu Ghraib: Detention, Summary Trial, Disappearances and Torture in America – Spring 2005 Clara Boudin Lecture, City College of New York (CCNY) – PDF

2005 From Magna Carta to Abu Ghraib: Detention, Summary Trial, Disappearances and Torture in America

Like so many people around the world, I was politicized first in 1968. In my case I was a student at Columbia Law School, living through the civil rights movement, the anti-Vietnam war movement, and the revolutionary upheavals of that time. When I started law school there were twelve women in our class, ten people of color, and three hundred white males, all wearing ties and jackets. When the police came on campus and beat students–and when we saw our experiences reflected in struggles between authoritarian governments and popular movements around the world–everything changed for me.

Shortly after law school in 1972, I joined the Center for Constitutional Rights because I looked at law as something that could be used for social change. The Center grew out of representing Martin Luther King in the south, southern civil rights demonstrators, and broadly the idea to use law to help progressive social movements. And for decades that’s what I devoted my life to–protecting U.S. activists against government spying; representing individuals tortured or killed in the illegal U.S. war against Nicaragua; defending Americans’ right to travel to Cuba; fighting for the rights of refugees; freeing Haitians with HIV from the U.S. detention camp at Guantanamo Bay; chasing down torturers and litigating against covert wars and executive war making.

The attacks of 9/11–”just a few blocks from my home–changed my thinking and some of my perceptions about how I was going to use law. In the wake of 9/11, I began representing people who, even if they aren’t guilty of bombing the World Trade Center, are not representing social movements I support. I am working with or representing people who I probably dramatically disagree with, and am now no longer fighting alongside a progressive social movement. I find myself instead fighting for core values both at the constitutional level and on the international rights level: very basic, fundamental human rights. Among them are the right not to be tortured, the right not to be detained indefinitely, the right not to be disappeared, and the right to be tried in a regular tribunal and not before some kind of secret, makeshift court.

It has been a real shift in my work, and the work of the Center for Constitutional Rights, to be representing and defending such basic aspects of international and constitutional law rather than litigating in support of a particular movement or a cause. It’s been a big shift, not always an easy one for us.

After 9/11, we took some of the hardest cases around. There were Guantanamo cases, which challenged indefinite detentions; cases challenging torture, cases challenging disappearances. And in the beginning we got a huge amount of hate mail for taking these cases, more than I’ve ever gotten in my life.

People wrote me letters that said, “Why don’t you invite the Taliban to your house and let them come and eat your children?” Or, “Why don’t you go be a guard down at Guantanamo surrounded by terrorists and see how you feel then?” There were very, very difficult decisions for us about taking cases. We could get no one to go along with us. We were out there alone–except for death penalty lawyers, who are used to representing extremely unpopular clients.

But we are doing what I believe is vitally necessary work–work that upholds the basic principles of justice, in the face of terrible attacks on the Constitution and international law by the U.S. government.

I could have titled this piece “From 1215–which is the year of Magna Carta–to 1214 in a Thousand Years.” It took us about a thousand years to go back to the year before the Magna Carta, which is where we unfortunately find ourselves now. We’ve gone backwards, we’ve given up and ignored the key teaching of the Magna Carta: that the executive is subject to law. This administration is doing everything in its power to ignore and override the fundamental principles that have shaped law and justice for centuries.

Even though I’m a lawyer, I didn’t really recall perfectly what the Magna Carta was about. But my son was studying it in high school this last year and so I tested him on it. And all of a sudden I came across Article 39 of the Magna Carta, which essentially says, “No free person shall be jailed without a jury of his peers.” This was a radical idea: what it meant was that the king could not simply point to someone and say, “You go to jail.” Instead, the Magna Carta said you have to have a jury, and that’s come to mean the idea of due process, which we have embedded in our own constitution. You have to have due process of law before you can jail somebody; you can’t torture people. And there’s the idea of the writ of habeas corpus: that every single person who’s detained can walk into a court and say, “Tell me why I’m in jail.” And it’s the erosion of these most fundamental rights that we’re talking about when we talk about the post-9/11 legal climate in this country.

The American Bar Association put up a plate on a column at Runnymeade, in England, where the Magna Carta was drafted, and on the plate they put the words, “Freedom under law.” I always thought that really meant that we, as citizens, are supposed to obey the law, You know, we’re not supposed to be anarchists; we’re not supposed to demonstrate in the streets against the administration; we citizens are supposed to obey the law. But, in fact, the real meaning of the Magna Carta is not about citizens obeying the law; it’s about the king obeying the law, or the president obeying the law. We have freedom because the authorities are under the law. The column at Runnymeade ought to read, “Authority Under Law.”

We’re in a dangerous period. We all know that. In terms of terrorism, I think a lot of what the Bush administration is doing is making us less safe rather than more safe– whether we talk about torture in Abu Ghraib or we talk about the war in Iraq. But certainly what we’re doing in legal terms with regard to the war on terror has become iconic in the rest of the world, and has led to a great deal of hatred of America.

I remember working with some Muslim psychiatrists and discussing how we were going to deal with our clients in Guantanamo. They said, you know, that picture of the crew-cut Marine guy standing over the ear-muffed, hooded prisoner in the hot Cuban sun–that picture is iconic, that’s everything that America is doing wrong to Muslim people. Add to that the searing, terrible images from Abu Ghraib, and the photos of an apparent execution of a wounded prisoner in Iraq, and you see how the lawlessness of the so-called war on terror inflames people.

What is happening is not abstract. Right now there are people being tortured in probably a dozen U.S. detention facilities around the world. And these are real people suffering right now from indefinite detentions, disappearances, torture, and summary justice.

I want to look at five aspects of the so-called war on terror that have most alarmed us at the Center for Constitutional Rights. They are the November 13, 2001, order of the president (Military Order Number One); Guantanamo; military commissions; and renditions–which are forcible transfers of a person to another country for interrogation–and torture.

But first I want to take us back to the period immediately after 9/11 One worrisome aspect right away was the roundup of non-citizens, particularly Muslims, in the United States, especially around New York. And CCR started representing those people immediately. There were probably three thousand people rounded up and placed in detention just because they were non-citizens, who were treated as terrorists, beaten, held incommunicado–and many of those cases are still going on. A second early aspect, of course, was the Patriot Act, again very worrisome, a three-hundred-and-fifty-page piece of legislation invading the rights of all of us–citizens and non-citizens alike.

The November 13, 2002 Military Order

Those were worrisome, but when I woke up on the morning of November 13th, 2001, that to me was the death knell for democracy in this country. That’s when Military Order Number One was issued by the President of the United States. Essentially, it says, “I, as the President, can detain any non-citizen anywhere in the world, and detain that person indefinitely without ever taking him to trial. I can go pick him out of The Gambia, pick him out of Bosnia, pick him out of Mexico and the Philippines, and I can put him anywhere I want, and detain him forever, never bringing him to a court.” The military order says that the people treated this way must be non-citizens and they ostensibly have to be involved in “international terrorism,”–but who decides that? In fact, indefinite detention without trial was soon applied to citizens as well–Yaser Hamdi and Jose Padilla.

A second point of that military order stated that if those people are tried–of course, they never have to be tried–they’re to be tried by military commissions. Military commissions are something we haven’t used since the Second World War. They’ve been completely outlawed by a variety of conventions and laws because they are ad-hoc tribunals that allow the president to do whatever he wants, with no regard for due process–designate the defendants, appoint the judges, decide the sentences, do the appeal, even have people executed, and have the whole thing done in secret.

The November 13th order was a wake-up call to us at the Center. Even though it was early on and we were still in shock after 9/11, we decided we were going to challenge the first detentions under the military order.


The next phase was Guantanamo. I had some experience with Guantanamo. I’d been there a number of times. I represented Haitian refugees who were detained there for many years, and it was probably one of the worst places I’ve ever been. You know, sometimes when you visit clients for long periods in jail you have a reaction, you never want to ever go into a jail again. It’s just too painful. I was an emotional wreck by the end of 1993, working with children, mothers, fathers, Haitian refugees who were supposedly HIV positive, and incarcerated for being so, in a barbed-wire camp, in a place that was a hundred and three degrees, out in the desert with banana rats and barbed-wire for three years. And I thought I would never have to go back there.

And so in January 2002 when I heard that the United States was going to take the first prisoners from Afghanistan to Guantanamo, I had some idea of what that meant. Guantanamo is a 38 square mile military base on the southeastern edge of Cuba that the United States won or seized as a result of its what it claimed was its attempt to help Cuba free itself from Spain during the Spanish-American War in 1898. Then, of course, the United States dug in, planning to stay there for the rest of Cuba’s life–at least through 1959.

Even after the revolution in 1959, the United States has continued to have complete jurisdiction and control of that base. Cuba has nothing to say about it. Guantanamo is like an American city: it has a McDonald’s, it has American money, and the U.S. military has complete control.

In our Haitian refugee cases, the United States fought us tooth and nail to make sure that no one in Guantanamo, even though they were held by the United States, had any constitutional rights. In the end the government was willing to close the camp, after we won a victory in a lower court, if we gave up the ruling that said there were some kind of constitutional rights for people in Guantanamo. The government wanted it left as a totally law-free zone where it could do what it wanted to people.

So when I heard that people were being sent to Guantanamo again I knew it meant tremendous trouble. I knew that what the administration was doing was trying to send people into a zone where it could treat them however they wanted and where we would have trouble getting into a court.

And we had an additional problem because of a 1950 World War II case in the Supreme Court called Johnson v. Eisentrager, which could be read to say that an alien, or non-citizen, held by the United States, outside the United States, could not even open the door to a court. Under this ruling, as the government read it, you couldn’t even go into the court to ask why you were detained. You were barred from the court altogether–couldn’t walk in. The courthouse door was slammed shut in your face.

Our first case came along January 10, 2002, a few months after 9/11. An Australian citizen named David Hicks had been arrested in Afghanistan and sent to Guantanamo. According to Donald Rumsfeld, Hicks was the worst of the worst. The people he was with were supposedly going to kill ten thousand Americans, they would try and chew through hydraulic cords on airplanes that transported them–and a lot of us believed Rumsfeld, at least in part. I believed that I was going to be representing some of the most dangerous people around, but we took the case, in the face of huge hostility.

We filed a case demanding that the Bush administration tell us why Hicks was being detained, asking what the charges were and asking for an opportunity to contest his detention in court. The legal term for this proceeding is a writ of habeas corpus. We filed in a federal court in Washington and eventually in the appeals court. We did not fare well. The courts were convinced we were wrong. Federal judges, whether they were Democrats or Republicans, said, “No, the courthouse doors are absolutely closed, you cannot open the doors to a non-citizen held by the United States outside the United States.” And Guantanamo, despite the total U.S. control of that base–was considered to be outside of the United States and outside the courts’ reach. Our clients–eventually we represented more detainees–might as well have been in Syria.

Two years later we made it to the Supreme Court. Almost no one had been freed from Guantanamo. Over 600 were imprisoned there from over forty countries. The prisoners were held incommunicado; no lawyers or family members were allowed to visit them. In the Supreme Court we represented a handful from the United Kingdom and Australia, but we couldn’t even tell them we were filing lawsuits on their behalf. We were representing their parents as “next friends,” which we were allowed to do under the special statute. But no one could tell the prisoners themselves anything.

But by the time we got to the Supreme Court things had shifted somewhat, certainly among lawyers and some others around the country. Former prisoners of war joined us–a group of fifty thousand of them said, “If we treat people like this, outside of the Geneva Conventions, what’s going to happen to American soldiers when we get taken prisoner?” Former diplomats came with us and we petitioned the Supreme Court, and lo and behold they granted us what lawyers call certiorari, and took review of the case. The case was argued in April of 2004, and on June 28th we won this incredibly resounding victory.

It sounds like a narrow issue: Can a person who’s detained–a non-citizen detained by the United States in Guantanamo–challenge that detention in American federal court? Can you walk in and just say to the government, “Why are you holding me?” And the answer the Court gave was, yes, you can. The door to U.S. courts is open. It appears from the decision that that anyone detained anywhere in the world by the United States, not just in Guantanamo, has a right to file a petition for habeas corpus in a court in the United States.

Now why is that earth-shattering? Well, we have a moderate rather than a liberal Court; we’re in the middle of a war on terror, according to our government; the government’s asserting huge military necessity, and this Court still says, you have to give people access to the courts. The court cited the Magna Carta and said, “we don’t believe in executive detentions.” It was a remarkable ruling, six to three, in a Court where we don’t win a lot.

After our victory we gathered together scores of other attorneys to work with us on these cases. We now have over a hundred lawyers, from big and small firms, both Democrats and Republicans. We filed writs of habeas corpus on behalf of a hundred or so people for whom we had authorizations from relatives.

Although we won the right to open the courthouse door for our clients, the questions remains of what rights they have once they are in the court. Does the Constitution apply in Guantanamo? Do the protections against torture and cruel, inhuman and degrading treatment protect them? Are they protected by the Geneva conventions? Do they get full hearings in federal court or only through the special Combatant Status Review Tribunals set up by the Bush administration in the wake of our Supreme Court victory? What of the right to lawyers? Can attorneys go immediately to Guantanamo? What about the hundreds of prisoners whose names we still don’t know and whom we don’t represent?

The government, however, is trying to treat our Guantanamo victory as merely a suggestion from the Supreme Court. The Bush administration took the position that our clients have no rights in the court to anything. It asked the lower court, where we were sent back after winning in the Supreme Court, to dismiss all of the cases. In February 2005 we won another major decision in the lower court. Judge June Green said our clients had constitutional and Geneva Convention rights and that evidence obtained through torture could not be used. The Bush administration did not like this at all; it found another judge who had been assigned seven of the 100 cases, and he ruled totally in favor of the government. He found the detainees had no rights and dismissed all of the cases.

We are now on appeal and the case may again go to the Supreme Court. Slowly a few of those in the camp are being released, but while the government is losing legally and will lose ultimately, it has successfully held back implementation of the Supreme Court decision. In March of 2004 it was reported in the New York Times and elsewhere that the Bush administration planned to send hundreds of the detainees to various countries, in many cases presumably their home countries. This would include such nations as Saudi Arabia where torture is regularly employed by the government.

While for a few of the detainees from other countries such as Kuwait this might be good news, for the majority it probably means unconditional detention in their home countries and the likelihood of torture. We at CCR, with other lawyers, have asked the court for an emergency order notifying us of any such moves so that we can prevent our clients from being sent to countries where it’s likely they will be tortured. In any event, the administration plans to continue the Guantanamo detention camp as a permanent camp with hundreds of detainees.

So what happened to our original clients? David Hicks, the Australian, remains in Guantanamo. He was charged with crimes and was to be tried by a military commission (see next section.) His trial by military commission was ruled illegal and is on appeal. Our English clients Iqbal and Rasul were freed and are living in the United Kingdom. Their story, which I explain below, shows the cruelty and futility of much of what went on at that camp. The fourth client, Habib, was freed after the Supreme Court victory–probably because his lawyer exposed that he had been terribly tortured when the United States had sent him to Egypt prior to taking him to Guantanamo. He is now living in Australia.

Hundred of others remain on Guantanamo. For those whose names we do not know, CCR has filed a lawsuit on behalf of the unknown–Doe v. Bush.

Military Commissions

On another front, we’re dealing with military commissions. This is the kind of court in which the U.S. government wants to try Hicks and a few other Guantanamo detainees–special trials for people who have supposedly committed war crimes. Initially, the administration thought it would try scores, if not hundreds, by these special courts. It has not worked out that way, in part because almost everyone who cares about fair trials, including military lawyers, considers them unfair or illegal.

To begin with, there are legal and legitimate avenues that the U.S. government is ignoring and could and should be using in place of these commissions. Since the Second World War, the way soldiers are tried has been through courts marital. And what the Geneva Conventions say is that when you’re going to try people for crimes under humanitarian or military law, you have to try them in regularly constituted tribunals and the same courts under which U.S. soldiers are tried. That means not an ad hoc or a special tribunal like these commissions, but a court martial or a federal court

The reason we don’t like ad hoc tribunals is because they’re essentially made up for the occasion–created to convict the person who might be tried. In the case of these new military commissions, the U.S. administration makes up all the rules, appoints the judges, pronounces the sentences, as happened here. They can literally try a person in secret using hearsay evidence–evidence of what someone told someone else with no right to cross-examine the witness. A defendant can sentenced without appeal to any court, be executed in secret, and that’s the end of it, you’ll never know about it.

As a result of a legal and political outcry the scheme has been modified to some extent. But it is still flatly illegal. Only two trials are even anticipated and no trials have actually happened. Of the two on the way, one of them is CCR’s first client, David Hicks. The other is Salim Ahmed Hamdan. As of 2005 all military commissions have been stopped by the courts. In a remarkable ruling the federal district court correctly determined that Hamdan should have been treated as a Prisoner of War (POWs) under the Geneva Conventions and as such he could not be tried by a military commission.

So the military commissions are just a mess now from the government’s point of view. It’s been three years; I think the commissions will never try the detainees. But it’s certainly the third aspect of what I am describing, where again the Bush administration tried to go outside of the law and any common regarding justice or a fair trial.

I have worked closely with military lawyers appointed to serve as defense counsel for these commissions; they are the real heroes because they’ve spoken out denouncing the commissions’ lack of fairness. Colonel Michael Mori, for example, has insisted that the legitimate way to try people is through courts-martial, not these crazy ad hoc tribunals. He was a chief prosecutor for the Marines, now he is a defense counsel. He’s said, “If we’re going to convict people we ought to convict the right people–and that means a system of justice that works, not one that convicts the wrong people.” Hamdan’s military defense lawyer, Navy Cmdr. Charles Swift, called the tribunals “victors’ justice,” asked to disqualify the tribunal members and said courts-martial were the appropriate proceeding for any such trial.


The fourth issue I want to touch upon is disappearances. Disappearances violate international law; it’s when the authorities seize you and refuse to acknowledge that they have done so. It became a familiar practice under Pinochet in Chile and in the so-called “dirty war” in Argentina. You know, there were disappearances after 9/11 in this country. The nine hundred, some would say up to 3000, Muslims picked up right after the attacks were put in Passaic, New Jersey prisons, or put in prisons in New York, and we couldn’t get their names, and their families couldn’t find out where they were. When families called they were sent to the wrong prison. It took weeks to get to them. And we never found out the names of many of them. The lawsuit to get their names was dismissed. They were disappeared. Of course, Guantanamo is similar; we don’t know the prisoners’ names, except to the extent we can glean information from occasional newspaper reports, or families who come to us and say somebody’s missing.

Another kind of disappearance is what the Bush administration euphemistically refers to as “rendition” or “extraordinary rendition.” I call it outsourcing torture. This happens when the United States snatches someone from another country or even from the United States, and sends them to another country that our security services cooperate with so the detainee can be tortured. We’ve learned they’re sent to Egypt, Syria, Morocco, Jordan, possibly the Philippines as well. They’re picked up, put on private jets that the CIA owns, flown around the world, dumped off in these countries with CIA people, and then put into underground torture facilities, and they’re essentially disappeared.

I was giving a talk at Princeton and I met a friend whose second cousin, a Muslim, was disappeared out of the Philippines just like that. It’s been six months and they have no idea where he is. At first they thought maybe he’d been killed somewhere, but they think now that he was disappeared by the United States. No inquiries to the administration have gotten an answer.

We learned about this practice because we actually got one of our clients out of one of those foreign country torture facilities. The man’s name was Maher Arar, a Muslim man from Canada. He was actually transferring planes at Kennedy to go back home to Canada; the United States grabbed him and sent him to Syria. He told U.S. officials that he would be tortured if sent back to Syria and, of course, the Bush administration knew he would. U.S. State Department reports have consistently, for well over ten years, stated that Syria routinely uses torture in its security detention facilities.

Once in Syria, Arar was put in an underground cell for ten months and ten days, had the heck tortured out of him, and finally, because of the Canadians, we got him out and he’s living back in Canada. He happens not to be guilty of anything–wrong guy, wrong place. Now there’s a public inquiry going on in Canada, and as a result we know about Maher Arar. But there are probably hundreds or more other people who essentially have been disappeared like this around the world and who, right now, are being tortured.

Related to rendering detainees to other countries for torture is the CIA practice of taking such detainees to their own torture facilities. Presumably, those whom the CIA wants to torture itself go to these hidden hell-holes. We can only guess where the secret prisons are. They may be in Diego Garcia, the U.S. military base on an island in the Indian ocean; they may in Pakistan or Iraq. But we know they exist, and within their walls disappeared victims are undergoing torture

Recently, more attention has been drawn to these practices of our-sourcing torture and of CIA torture centers. But little has been done about it. The Bush administration claims it gets assurances from countries where detainees are sent that they will not be tortured. But these are the same countries where the U.S. has said torture is used routinely–the assurances are worth nothing. They are also a diversion–these countries such as Egypt are chosen precisely because they do use torture; U.S. officials want these people tortured. It’s a scandal. As to the CIA hell-holes, there does seem to be some nervousness on the part of the CIA. Now that the practice has been exposed, some CIA agents fear they may be criminally prosecuted—as well they should, along with those high officials and lawyers who have authorized these practices.


The fifth topic is torture and the torture memos. There are a lot of memos written by high-level lawyers in the Bush administration, authorizing the torture of detainees. These memos were written to give a legal defense to the torturers who now fill the administration’s ranks. For example, it is said that officials in the CIA came to people like the president’s counsel, Alberto Gonzales (now Attorney General) and said, “We’re not going to be out on a limb and torture these prisoners unless you give us legal protection.” And those memos were written so that the CIA and military people could claim they were obeying the law, in case they might be prosecuted for war crimes.

In the wake of Abu Ghraib and the expose of the torture memos, the Bush administration is trying to say that it was not responsible for the torture and inhuman treatment. The administration is blaming it on a few bad apples in Iraq and Afghanistan who hung a couple of people and beat the heck out of them or sexually abused them, and claiming that those bad apples are responsible for the “excesses.” But this complicity in torture goes all the way to the top, all the way up the chain of command, from Lt. General Sanchez in Iraq and General Miller, who was in Guantanamo and then went to Iraq, up to Secretary of Defense Rumsfeld, and conceivably even to the President of United States.

Did Rumsfeld know about American soldiers piling naked prisoners in a heap in Abu Ghraib? I can’t say for sure. We won’t know until we know what the Red Cross brought to his attention or what his underlings told him. But did his policy, the memos he authorized that said we don’t have to pay attention to the Geneva Convention, we can use dogs against people, we can use extreme interrogation techniques, we can treat people inhumanely— did those memos lead to Abu Ghraib? Absolutely. Did Rumsfeld authorize conduct that constituted war crimes? Absolutely. So that’s what we’re talking about here.

It begins, as far as we know, with an extraordinary memo written on January 25, 2002. That memo told the President why we should not follow the Geneva Conventions, and a day later Colin Powell followed it with a memo of rebuttal. Powell said that for us not to apply Geneva would undercut America’s moral authority in the world and would endanger our soldiers all over the world. He pointed out that we’ve been following these principles for a hundred years, that the rules and laws guaranteeing humane treatment and prohibiting torture are inscribed in long-standing treaties such as the Geneva Conventions. The United States, he reminded the president, was a pioneer in the development of the Conventions; in fact, the laws proscribing inhumane treatment came out of our own Civil War and were written to protect rights of all people. Powell argued that accepting Gonzalez’s memo would mean the United States was abandoning fundamental moral and legal principles.

Gonzalez won the day with his memo. He basically paved the road to Abu Ghraib. He essentially said that we had to interrogate people for intelligence, and we had to give them summary trials, and Geneva’s provisions on interrogation were obsolete, because while they allow you to interrogate people, they don’t allow you to treat people inhumanly or to torture them. Gonzalez noted that the War Crimes statute, a special criminal statute in the United States, prohibits violations of the Geneva conventions. So he said to the president, in effect: “Look, the definition of “inhumane” is vague, some prosecutor may come along in the future and decide that the way we’re treating people is inhumane, and therefore we might be prosecuted, and the best way to avoid prosecution is to simply say the Geneva Conventions don’t apply, and therefore we can’t violate them. If they don’t apply, we can’t violate them.”

So what Gonzalez really said in his memo was that yes, we are going to be treating people inhumanly, contrary to Geneva, and we must cover ourselves legally for the torture and inhumane treatment we are planning to inflict on prisoners.

Then Gonzalez asked for more memos to help him make his argument: the most famous was called the Bybee memo. Bybee is now a federal judge in the ninth circuit, one of the most important circuits in the country, having been elevated to that job by the Bush administration. In his memo, Bybee did two extraordinary things. First, he took what I call the Pinochet defense. And Pinochet, you all remember, murdered at least three thousand people in Chile and tortured them in the name of national security. Bybee basically said–I’m summarizing here–“Look, in the name of national security the president is exempt from laws prohibiting torture. He can do whatever he wants in the name of national security. The fact that we’re signatories to and have ratified the convention against torture, which makes it a crime; the fact that we have a criminal law that makes it a crime to torture people in the United States or outside the United States; the fact that it’s customary international law not to torture; the fact that the Eighth Amendment to the Constitution essentially prohibits torture–none of that matters, because the President can do whatever he wants in the name of national security. And if the President can authorize torture he can authorize those under him to do so and that will be a defense to a criminal prosecution.”

Next Bybee said that torture is not torture. We’re going to redefine torture very narrowly, to allow us to do what we want. So in the old days, taking a growling dog up to a naked man and saying, “It’s going to bite your genitals off,” was torture, and today it’s not. Hanging someone from his or her wrists is not torture. Only physical pain that leads to organ failure or death is torture.

Gonzales in this testimony at his confirmation hearing for Attorney General acknowledged that that he had agreed with the conclusions of the Bybee memo. It was only at that hearing, in January 2005, that Gonzales said the Bush administration now rejects that narrow definition and has gone goes back to one that the world accepts: torture is torture–putting someone in fear of serious physical injury is torture. So for over two and one-half years, under a definition of torture that essentially allowed everything short of murder, detainees around the world were tortured. Even today, Gonzales and the Bush administration hold to their view that non-citizens held outside the U.S. can be treated inhumanely and that neither Geneva Conventions nor the prohibition on cruel, inhuman and degrading treatment in the Convention Against Torture protects them.

After the Gonzalez and Bybee memos, we get the authorization for mistreatment and torture written by our secretary of defense, Donald Rumsfeld. There is a list of techniques that the military was asking for permission to use in Guantanamo, and Rumsfeld signed off on them. Rumsfeld authorized things like: “Take away comfort items, e.g. Koran.” In other words, go after people’s religion. Another one, “Exploit phobias, e.g. dogs.” That speaks for itself. When you see those pictures of growling dogs and naked detainees just think–Donald Rumsfeld did this. Then, “stress positions will be used for no more than four hours.” Rumsfeld, in his own hand, wrote on the authorization, “What’s the matter with this? Why only four hours, I stand for eight to ten hours a day?”

I learned what all of this meant first-hand when I went to see three of my clients in Tipton, England, who had been freed from Guantanamo after two and a half years when it was discovered they had falsely confessed. Two of these were clients our team of lawyers had represented in the Guantanamo litigation that ultimately went to the Supreme Court. They were released from Guantanamo in February of 2004 after it was proved that they had falsely confessed to meeting Osama Bin Laden. I spoke to them on a trip to England.

These three guys, twenty years old or so, reminded me of my own kids. They were Muslim men, as far from being terrorist as my own kids. But Guantanamo was like a no-exit nightmare. They were assumed to be guilty because they were there. So if you said, “Well, no, I was working in a bookstore in London when you said I met Osama,” they weren’t going to believe you. They’d say, “You’re lying, you’re lying, you’re never leaving here.” So your only choice was to agree, to confess in the hope that the conditions would improve and the torture and abuse would stop.

They’d say if you confessed to just being helpful to the Taliban it would go better on you. Of course, once you confessed to that then they’d take you up the ladder. “Oh, you mean you were trained in terrorism. You mean you went to al Farooq Camp. You mean you helped finance terrorism.” And then they’d start more intensive interrogation–they’d do as many as two hundred interrogations on you in a couple of years–and then they’d put you in isolation for three months at a time and then they’d bring out the dogs.

What happened to my clients was they were shown a picture of Osama Bin Laden and forty people out in a field somewhere in the world, and they said, “Those three guys are you, aren’t they?” And our clients said, “No, we were in England at the time.” And the interrogators kept saying, “It’s you, it’s you, it’s you. It looks just like you.” Finally they confessed.

However, the cases of the British citizens in Guantanamo, the Tipton Three, caused a tremendous stir and outcry in their country. Hundreds of members of Parliament objected to indefinite detentions without trial and the incommunicado nature of the detentions. Initially, British intelligence, like its American counterpart, assumed our clients were terrorists and worked against their interests. However, as the outcry rose, British intelligence investigated the confessions and the detainees’ original story. A year later British intelligence proved that the Tipton Three in fact had been in the United Kingdom during the time this photograph of them supposedly sitting with Osama in Afghanistan was taken. They had neither met Osama nor been in the al Farook training camp.

I went and interviewed these men before the Abu Ghraib photos were released to the public, before we won in the Supreme Court, and I didn’t believe what they were telling me. I thought part of it–stuff about women interrogators taunting them, that women would strip people down, that the dog was brought in, or that they were chained to a ring on the floor for twelve hours–could not be true. I had trouble really believing it completely. I knew that there was torture going on at Bagram in Afghanistan, but I thought Guantanamo was at least on a slightly different level.

But, when the Rumsfeld authorizations for interrogation techniques were revealed in the summer of 2004 I realized, in fact, that everything they told me, every single thing mentioned, was exactly what happened to them, and they didn’t exaggerate an inch.

And then, of course, we had the photos that came out of Abu Ghraib, and this whole thing exploded. On April 28th, 2004, part of the series of cases that I call the Guantanamo cases were argued in the Supreme Court. One was the Jose Padilla case, the so-called American enemy combatant who was imprisoned in a military brig in the United States, and like the Guantanamo detainees held incommunicado and with no access to a lawyer, During that argument in the court Justice Ginsberg, one of the more liberal judges on the court, looked at the attorney for the government, and said, “Are you saying the court can’t do anything in these cases? We’re not allowed to open the courthouse door? We can’t even look at what’s happening? What if the government decides, as a matter of policy, to use just a little bit of torture?” And Associate Solicitor General Paul Clement stood up, and with a completely straight face said–and again I paraphrase–“Well, first of all, just because they might do something doesn’t give you the right to micromanage what we do. But secondly, we would never do that. You have to trust us.” Trust us. That is how the government ended the argument in that case. Six hours later NBC put out the pictures of Abu Ghraib, and I didn’t know whether we were going to win the case before that, but it was over as of then. The Bush administration could not be trusted.

The use of torture and the inhumane treatment of detainees by the Bush administration continue, and those responsible up the chain of command and in the administration have escaped liability or accountability. Every one of the so-called investigations into the torture and abuse has focused down the chain of command and exonerated those at a high level who are responsible. Calls for an independent investigation or a special prosecutor have fallen on deaf airs in a Republican-dominated government. In fact, those responsible for torture are keeping their jobs and in some cases gaining more power: Rumsfeld has stayed on; Gonzales became Attorney General; Bybee became a federal appeals court judge and Sanchez may get a fourth star.

Because of this utter failure to hold U.S. officials accountable, CCR had filed a number of damage cases against officials. We have also tried to open a criminal investigation in Germany of Rumsfeld, Sanchez, former CIA director George Tenet and others. We lost the first round of that case, but are appealing. In filing that case we used the declaration of a prominent U.S. lawyer and international law expert, Scott Horton. Horton, Chair of the Committee of International Law of the Association of the Bar of the City of New York, had been visited in May 2003, a year before the photographs of Abu Ghraib were revealed, by a delegation of senior military lawyers who advised him that policy decisions taken in Rumsfeld’s office were going to lead to the abuse of detainees. Horton’s declaration in our case demonstrated conclusively that no investigation of the officials named in our lawsuit would occur in the United States, and that there was a cover-up of high level involvement in war crimes. As Horton said to the German prosecutor:

“I have formed the opinion that no such criminal investigation or prosecution would occur in the near future in the United States for the reason that the criminal investigative and prosecutorial functions are currently controlled by individuals who are involved in the conspiracy to commit war crimes.”

Horton’s powerful declaration detailed the basis for his conclusion that the high Bush administration officials are involved in a conspiracy to commit war crimes and cover them up. First, Horton pointed out that the Department of Defense was under the control of defendant Secretary of Defense Rumsfeld who therefore had “effective immunity.” Second, he found that the criminal investigations pursuant to army regulations look only down the chain of command and not up, and thus eliminate any “meaningful inquiry into the criminal misconduct of the defendants.” Third, he found that the criminal investigations were influenced from above with the “intention of producing a ‘whitewash’ exculpating those up the chain of command.” Fourth, he found that the responsibility of the legislative branch to investigate had been abdicated, since Senator John Warner, chairman of the Senate Armed Services Committee, “was threatened [by other Republicans] with sharp political retaliation if he carried through on his plans to conduct real hearings.” Fifth, he found that the Attorney General controls war crimes prosecutions under the U.S. War Crimes Act and that since former Attorney General Ashcroft was “complicit in a scheme for the commission of war crimes” he had not undertaken a criminal investigation. Alberto Gonzales, the current Attorney General, Horton said, was the “principal author of a scheme to undertake war crimes” and was motivated in writing his January 25, 2002 memo by a fear of prosecution for war crimes, which he sought to evade in that memo.

Although we have not yet been able to hold high-level officials accountable, it will happen. It may not happen this year or even next year, but eventually as is now occurring in Chile with Pinochet, justice will be done.


As I said, I think fundamental protections for human beings are at risk here, and the consequences are grave, really grave.

First, to the extent we, the United States, had any moral authority in the world we have nothing left. How do we complain about anything that goes on in the world, whether it is happening to an American citizen or otherwise, when we are violating fundamental protections of people around the world? Two days after the Abu Ghraib photos came out, the State Department was supposed to issue its annual human rights report, where it judges other countries in the world about whether they use torture and indefinite detention and military commissions. Well, it had to hold up that report. Our condemnation of other countries, other dictatorships, now means nothing.

And then, secondly, to the extent that we want our soldiers treated humanely, what standing do we have any longer in the world to demand it?

And then third, and really importantly, to the extent we want to give people in the world a real reason or a pretext to be angry at the United States and to attack us, here it is. And whether you believe that the beheadings in Iraq are related to this or not, frequently the Iraqi insurgents now dress their captives in orange jumpsuits like those worn on Guantanamo as a way of showing, “You’re treating our people terribly, this is the way we’ll treat your people.”

Finally, to the extent we understand it, our country and our democracy is based on the idea that authority–the President, the government–is under law, that the Magna Carta had some meaning. This Bush administration has been almost successful in destroying that principle. But having actually been in the litigation trenches on these issues, and building up a fair amount of support, particularly in the legal communities around the world, with our victories, I would not say, certainly, that it’s not hopeless. There’s massive resistance around the world to the policies used in Guantanamo and Abu Ghraib.

As I said, we think we’ve had some important victories. I don’t think the government can get away with saying, “Trust us,” anymore. I think that day is over

Of course, the war in Iraq is continuing. I think we’ve essentially lost that war. The administration doesn’t know it and we’re going to lose a lot more people over the next couple of years while it drags on, but it is lost. It’s incredibly sad.

Chris Hedges, a New York Times reporter, talks about Thucydides and the history of the Peloponnesian War in Greece, and how Athens expanding its empire brought tyranny abroad and eventually tyranny at home. And when we talk about the United States you can’t divide what’s happening at home with what’s happening abroad. And the fact that we’re essentially an incredibly imperialist nation right now, at war all over the world, makes it necessary for the administration to suppress dissent at home, to violate the law domestically and internationally. They say, “Well, we’re making you safer, so you have to accept restrictions on your liberty.”

But the obligation for me and for all of us now is resistance to this administration and its taking us down a path of lawlessness–a path that that makes me think we in a new inquisition. We must continue fighting for core values, for human rights and for authority under law. This is about Magna Carta. Yes, for all I know, I, or some of my co-counsel, may have represented people who fought with the Taliban as well as people wrongfully accused who are completely innocent. But the real question here is the core values for all of us. And the core value in all of this is really that we have a government that is under law and that we have a president who is under the authority of law.

My optimism comes from the fact that at least half the people in the United States, and way more than half around the world, are with us. Our government just doesn’t know it yet. We have an absolute obligation to go out there resist and to fight for the values and world we want.

RECENT CCR TORTURE CASES: for more information

Rasul v. Rumsfeld: In October 2004, the leading commercial litigation firm of Baach Robinson & Lewis and the Center for Constitutional Rights (CCR) brought suit on behalf of four British detainees released from Guantanamo Bay against Secretary of Defense Donald Rumsfeld, Chairman of the Joint Chiefs of Staff General Richard Meyers, Major General Geoffrey Miller, and senior officers in their individual capacities responsible for the treatment of detainees at Guantanamo. Seeking $10 million in damages, the suit charges that the Pentagon chain of command authorized and condoned torture and other mistreatment in violation of the Alien Tort Statute, the U.S. Constitution, the Geneva Conventions and the Religious Freedom Restoration Act. None of the detainees had ever been a member of any terrorist group or taken up arms against the United States. They were released in March and returned to Britain without ever being charged with a crime.

Saleh v. Titan: In June 2004, Philadelphia attorney Susan Burke, Michigan attorney Shereef Akeel and the Center for Constitutional Rights filed suit on behalf of more than a thousand Iraqi victims against the private contractors CACI and Titan, Inc. for their role in the torture at Abu Ghraib and elsewhere in Iraq. The suit names U.S. government officials as co-conspirators.

Arar v. Ashcroft: CCR brought suit against government officials including former Attorney General John Ashcroft, former Acting Deputy Attorney General Larry Thompson, former Homeland Security Director Tom Ridge, former INS Commissioner James W. Ziglar and FBI Director Robert Mueller on behalf of tortured rendition victim Maher Arar in January 2004. Arar, a Canadian citizen, was arrested by U.S. officials at John F. Kennedy Airport in September 2002 and flown to Syria where he was tortured and kept underground in a 3-by-6-by-7 foot cell for ten months by Syrian intelligence officials before being released without charge.

German war crimes complaint: In a historic effort to hold high-ranking U.S. officials accountable for brutal acts of torture including the widely publicized abuses carried out at Abu Ghraib, the Center for Constitutional Rights, German attorneys and four Iraqi citizens filed a criminal complaint in November 2004 with the German Federal Prosecutor’s Office under the doctrine of universal jurisdiction, whereby suspected war criminals may be prosecuted irrespective of where they are located. Officials named include Defense Secretary Donald Rumsfeld, current Attorney General and former White House Counsel Alberto Gonzales, former CIA Director George Tenet, Under Secretary of Defense Stephen Cambone Major General Geoffrey Miller, and Lieutenant General Ricardo Sanchez. Despite the evidence and the legal merits of the case, the Prosecutor recently caved in to political pressure and refused to take the case on the grounds that he claimed to believe the United States would investigate the matter itself. CCR is appealing that decision.

Arar v. Ashcroft: CCR brought suit against government officials including former Attorney General John Ashcroft, former Acting Deputy Attorney General Larry Thompson, former Homeland Security Director Tom Ridge, former INS Commissioner James W. Ziglar and FBI Director Robert Mueller on behalf of tortured rendition victim Maher Arar in January 2004. Arar, a Canadian citizen, was arrested by U.S. officials at John F. Kennedy Airport in September 2002 and flown to Syria where he was tortured and kept underground in a 3-by-6-by-7 foot cell for ten months by Syrian intelligence officials before being released without charge.

German war crimes complaint: In a historic effort to hold high-ranking U.S. officials accountable for brutal acts of torture including the widely publicized abuses carried out at Abu Ghraib, the Center for Constitutional Rights, German attorneys and four Iraqi citizens filed a criminal complaint in November 2004 with the German Federal Prosecutor’s Office under the doctrine of universal jurisdiction, whereby suspected war criminals may be prosecuted irrespective of where they are located. Officials named include Defense Secretary Donald Rumsfeld, current Attorney General and former White House Counsel Alberto Gonzales, former CIA Director George Tenet, Under Secretary of Defense Stephen Cambone Major General Geoffrey Miller, and Lieutenant General Ricardo Sanchez. Despite the evidence and the legal merits of the case, the Prosecutor recently caved in to political pressure and refused to take the case on the grounds that he claimed to believe the United States would investigate the matter itself. CCR is appealing that decision.

ACLU, CCR, et al. v. Department of Defense: The American Civil Liberties Union, the Center for Constitutional Rights, Physicians for Human Rights, Veterans for Common Sense, and Veterans for Peace, filed a suit in June 2004 that charged the Department of Defense and other government agencies with illegally withholding records concerning the abuse of detainees in American military custody. According to the lawsuit, the failure to comply with a Freedom of Information Act (FOIA) request filed by the same groups more than six months prior constitutes a deliberate and unlawful withholding of information from the public. Thousands of important and incriminating documents continue to come to light from this action.

Turkmen v. Ashcroft- In April 2002, CCR filed a civil rights lawsuit against Attorney General John Ashcroft, FBI Director Robert Mueller, former INS Commissioner James W. Ziglar, and officials of the Metropolitan Detention Center (MDC) in Brooklyn, New York, on behalf of a class of male Muslim non-citizens from Arab and South Asian countries who were swept up by the INS and FBI in the dragnet that followed September 11. The suit charges that the INS arrested this group on the pretext of minor immigration violations and secretly detained them for the weeks and months the FBI took to clear them of terrorism, in violation of the U.S. Constitution and international human rights law. The suit further charges that some of these detainees were improperly assigned to the MDC, kept in solitary confinement with the lights on 24 hours a day, placed under a communications blackout so that they could not seek the assistance of their attorneys, families, and friends, subjected to physical and verbal abuse, forced to endure inhumane conditions of confinement, and obstructed in their efforts to practice their religion.

Petition to Inter-American Commission on Human Rights on Behalf of the Guantanamo Detainees: CCR filed a petition asking the Inter-American Commission on Human Rights of the Organization of American States to intervene against the U.S. government’s inhumane treatment of the detainees at Guantanamo Bay. The U.S. government has denied the Guantanamo detainees their basic rights: hundreds of detainees have suffered abuse in indefinite detention, do not know what they have been charged with, do not have access to counsel, and are being effectively denied their right to trial in U.S. courts.

Petition to Inter-American Commission on Human Rights on Behalf of the Guantanamo Detainees: CCR filed a petition asking the Inter-American Commission on Human Rights of the Organization of American States to intervene against the U.S. government’s inhumane treatment of the detainees at Guantanamo Bay. The U.S. government has denied the Guantanamo detainees their basic rights: hundreds of detainees have suffered abuse in indefinite detention, do not know what they have been charged with, do not have access to counsel, and are being effectively denied their right to trial in U.S. courts.