Litigating Against Torture: From Guantanamo to Abu Ghraib (Draft) – with Peter Weiss – PDF

2004 Litigating Against Torture: From Guantanamo to Abu Ghraib

We have a serious problem in the United States. Our highest officials, Secretary of Defense Donald Rumsfeld, Former CIA Director George Tenet, Attorney General Alberto Gonzales, General Miller and other high level civilian and military officials are deeply implicated in the unfolding torture scandal. This is well known. It is well known around the world and to those who do not shut their eyes to it, well known in the United States. Yet, inhumane treatment and torture of those detained in the “war on terror” continues and those responsible at the highest level of the Bush administration are not held accountable. This short piece will discuss some of the evidence of high level complicity and what is known as the German case: the effort by the Center for Constitutional Rights to bring a criminal prosecution in Germany against these officials.

We know of the involvement of high officials from the infamous torture memos. We know of their involvement from authorizations by these officials to employ interrogation techniques that constitute torture and inhumane treatment. And we know of the awful conduct that occurred as a result of these memos—whether that conduct occurred in Bagram, Abu Ghraib, Guantanamo or secret CIA detention facilities around the world.

Significant evidence of the role of the higher-ups begins with Guantanamo, although torture and inhumane treatment began in the aftermath of the Afghanistan war at detention facilities in Bagram and Kandahar. The famous January 25, 2002 memo by the President’s counsel Alberto Gonzales tells the President why the U.S, should not follow the Geneva Conventions. He argues that the U.S. needs to interrogate the detainees and that Geneva’s provisions on interrogation are “obsolete;” they don’t allow you to treat detainees inhumanly. If you do treat detainees inhumanly in violation of the Geneva Conventions you can be charged with a war crime in the United States under a the War Crimes Act. The best way to avoid such prosecution is to simply say the Geneva Conventions do not apply, and therefore U.S. officials cannot violate them. So way back then, by January 25, 2002, the Bush administration had decided to take the gloves off and treat the detainees inhumanely, which is exactly what occurred.

Then Gonzalez was involved in memos. The most famous was call Bybee memo, B-Y-B-E-E. And it’s important because that wonderful Mr. Bybee is now a federal judge in the ninth circuit, one of the most important circuits in the country, having been elevated to that by our fine administration, knowing then who had done the memo, we didn’t know. He would never get it today, I would hope, but I don’t know the way they elevate these people.

But his memo—Gonzalez asked for memos to essentially make him arguments for torture. And so what they did—what Bybee did in his memo are two extraordinary things. First, he took what I call the Pinochet defense. And Pinochet, you all remember, murdered three thousand people in Chile and tortured them in the name of national security. And so what does Bybee write to Gonzalez? He says, “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 and have ratified the convention against torture, which makes it a crime, the fact that we have a criminal law that is passed that implements that, 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, the President can do whatever he wants in the name of national security. So he can order people to be tortured.” Pretty extraordinary, and at that point, if you look from right to left on our [unintelligible], you look from person to person and [unintelligible]—you look from Pinochet to Bush, what are you talking about? What’s the difference at that point?

And then, the other thing it said is torture is not torture. We’re going to redefine torture. So while torture might be, in the old days, taking a growling dog up to a man and saying, “It’s going to bite your genitals off,” today it’s only when you have—are facing actually an organ failure. When something—like you’re about to die from your heart, you can do whatever you want short of that. Again, Orwellian, war is peace, you know, torture is not torture. Those are the Bybee memos, again, Gonzalez asked for.

Add testimony of Gonzales

So what we’ve done is we have these two memos that set the road really—and more, there’s a book of them—set the road to Abu Ghraib. And then we get—at least some of the evidence we have is that authorization I handed you that Secretary of Defense, Donald Rumsfeld, wrote. This is stuff he wrote, our Secretary of Defense. This isn’t even the worst stuff that went on, this is what they’ve publicly given us in documents, part of the Schlesinger Report that took place.

If you look at the middle column, the ones that supposedly were available from December to January 2003, and you look on that left hand side where they go across, you see things like, “Take away comfort items, e.g. Koran.” In other words, go after people’s religion. Another one, “Exploit phobias, e.g. dogs.” Now, there’s two things about that, any person, Muslim or non-Muslim, is going to be terrified by an unmuzzled dog going at him or her. I mean that’s a given [inaudible].

When you’re a Muslim, dogs are considered unclean, so it has a special religious significance. These interrogation techniques, when you look through them and you know what they’re based on, they’re based on exploiting people who are religious Muslims on one level. That’s what they’re about. That’s the nudity, that’s the use of women, other things like that.

Another one is there is use of stress positions. My clients in Guantanamo were chained to the floor for twelve to fifteen hours at a time. Rumsfeld writes next to that one, it says—I think it says, “Will be used for no more than four hours,” Rumsfeld, in hand, writes—his own hand, writes, “What’s the matter with this? Why only four hours, I stand for eight to ten hours a day?” So this was personally authorized, this stuff, by our Secretary of Defense.

So that’s the authorizations, there’s many more than those. There’s Sanchez, there’s a whole group of them out there, obviously. And then you get to the third level, which is what you actually saw. You know, I’m [inaudible], I went to see my clients in Tipton, England—in England in March. Three of my clients were freed from Guantanamo; they’re called the Tipton Three. Classic case of why this stuff doesn’t work in the war on terror.

These three guys, twenty years old, they remind of my own kids. They were Muslim men, as far from being a terrorist as my own kid. I come into the room with them, they’ve been in Guantanamo two and a half years; they got out because it was found they falsely confessed. Here’s what happened, they go into Guantanamo, which was like a no exit situation. You’re assumed dead guilty when you’re in Guantanamo, and so anything you say, you say, “Well, no, I was working in a bookstore in London when you said I met Osama,” they’re not going to believe you. They say, “You’re lying, you’re lying, [inaudible].” So your only choice at point is to really confess.

They have a pyramid, if you confess to just being helpful to the Taliban they’ll say it will go better on you. Of course, once you confess to that then they 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.” And then they start the interrogation of one hundred or two hundred interrogations in a one-year period and then they put you in isolation for three months at a time and then they bring out the dogs.

And so really what happened to my clients was at some point they were shown a picture which had Osama Bin Laden and forty people in a room—out in a field somewhere in the world, and they said, “Those three guys are you, aren’t they?” And our clients say, “No, we were in England at the time. We were in England at the time.” And they kept saying, “It’s you, it’s you, it’s you. It looks just like you.” Finally they confessed because, “We were asked if we went to Al Farooq Training Camp and knew Osama.” A year later, after more interrogation, British intelligence, because there was a mistake made in Britain about these three young men, proves as they had said, that they were working in a place called Curry’s in the United Kingdom during the time this photograph was taken and had nothing to do with Osama Bin Laden, and it came out.

But when I went in March—I went and interviewed them in March before the Abu Ghraib photos, before we won in the Supreme Court, and I didn’t believe what they were telling me. I thought part of it was just, you know, it was—it was stuff about women and being Muslim and maybe it just—I just don’t believe—it’s not credible exactly to me—or that they would strip people down—the women interrogators—or that the dog was brought in, or that they were chained to a ring on the floor for twelve hours. I just—I had trouble really believing it completely. I knew that there was torture going on at Bagram, but I thought Guantanamo was at least on a slightly different level. The Red Cross had been in there, etcetera.

But in fact, everything they told me, when those later things came out in the Rumsfeld reports, every single thing was exactly what happened to them, and they didn’t exaggerate an inch. They could have said, “Oh, we had electroshock, we had this,” they didn’t say that. They said exactly what happened in those things and that’s exactly why they confessed.

And then, of course, we had the photos that came out on April 28th, they really exploded this whole thing. We wouldn’t have known nothing [inaudible], there would have—there’s nothing we would have known, no one would have paid any attention. I knew about torture going on in Bagram, in December, 2002, there were reports in the Washington Post, we knew nothing.

Now the way the photos came is great because, you know, on April 28th part of the series of cases that I call the Guantanamo cases, although they were the American enemy combatant cases, were argued in the Supreme Court. And the Supreme Court justice—there was the Padilla—the Padilla case, the so-called American enemy combatant. Justice Ginsburg, one of the more liberal judges on the court, looks at the attorney for the government, this is before the photos from Abu Ghraib, and says, “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 the government stands up with a completely straight face—the Solicitor General Smithley [phonetic]—and says, “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, and you have to,” and he uses these words just like was just said, “You have to trust us.” Trust us, that’s what the government ended the argument in that case. Six hours later NBC puts out the pictures of Abu Ghraib, and I don’t know whether we were going to win the case before that, but it was over as of that point.

I think fundamental protections are at risk here, the consequences are grave, really grave. First, to the extent we had any moral authority in the world we have nothing left, absolutely nothing. How do we complain about anything that goes on in the world, to an American citizen or otherwise, when we’re doing what we are to people around the world?

And, you know, the day after—two days after Abu Ghraib photos were supposed to come out the State Department was supposed to issue its annual human rights report, where it judges other countries in the world about how they’re doing about torture and, you know, indefinite detention and military commissions. Well, it had to hold up that report. And now, you know, that report is basically good for what I used to do with the National Enquirer, which is wrap fish with it, because that’s what it’s worth. It’s worth absolutely nothing in terms of the moral authority of the United States.

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, however you want to look, to be angry at the United States and to go after us. And whether you believe that the beheadings in Iraq are related to this or not, frequently and often they dress people in orange jumpsuits like Guantanamo as a way of showing, “You’re treating your people one way, this is the way we’ll treat your people.” I hate to say they would have done that anyway, [inaudible] certain that they would have—or may have. But certainly it makes our ability to say much about that, and anger people, substantially less.

Finally, to the extent we understand it, our country and our democracy is based on the idea that we have authority under law, that the Magna Carta had some meaning, this Bush administration has been out to—and it’s almost been successful in destroying it. You know, after a talk like this you might ask if it’s almost hopeless. You know, having actually been in the litigation trenches with this and with building up a fair amount of support, particularly in the legal communities around the world, by having won a bunch of this stuff, I would not say, certainly, that it’s hopeless. And there is, while there may be not be in this country, there’s certainly massive resistance around the world for the policies from Guantanamo to Abu Ghraib, I mean apart from the policies in Iraq.

I think the New York Times called, you know, the demonstrations the second super power. So I don’t think it’s hopeless at all. As I said, we think we’ve had some important victories. I don’t think you can say—the government can get away with saying, “Trust us,” anymore. I think that day is over with. I think that’s why they’re now out to destroy the courts in these last statements that Ashcroft has made. I think they really want to go after them.

I honestly think what’s going to happen is [inaudible] is going to be significant. And then, you know, people always ask, and you guys are going have as good of answers for this as I am, “What do we do now?” I mean the answer is, what do we do now, we take on every issue from Guantanamo to Abu Ghraib to torture to Iraq and every other domestic issue, you know, from gay rights to abortion to economic security. I mean those are all out there and they’re all on the table.

And an immediate thing, and what’s outraged me probably more than almost anything in the last few days, is the treatment of Alberto Gonzalez. Here is the guy who I just described to you who authored, in my view, one of the key memos that led to Abu Ghraib—and you can argue he was doing the work of Cheney and Rumsfeld, that’s correct, he was, but he was doing the work, and doing it as a knowledgeable lawyer, and no one is really taking him on.

And my optimism, which is not as great as it was in the sixties, but is that half the world—at least half the United States, and way more than half of the world, is with us. Our government just doesn’t know it yet. But we really have an absolute obligation to go out there and just resist and to fight for the values that we really care about.

Thank you very much.