With a few exceptions — Rush Limbaugh,
perhaps, or Fox News Channel — most journalists, academics and
lawyers in this country long ago stopped taking President
George W. Bush seriously when he contended, as he still does,
that agents of the U.S. government don't practise torture.
They have and probably still do. They certainly still have
official permission and, despite Barack Obama's campaign
rhetoric, may for some time yet.
The latest authority to contradict the president is one of his
own top officials, Susan J. Crawford, the retired military
judge responsible for supervising the military prosecutions of
inmates at the Guantanamo Bay prison camp in Cuba.
"We tortured Qahtani," Crawford told the Washington Post's Bob
Woodward this week, referring to Mohammed al-Qahtani, a
so-called "high-value" prisoner who is widely regarded as one
of the intended 9/11 hijackers.
"His treatment met the legal definition of torture," Crawford
said. "And that's why I did not refer the case" for
prosecution.
In other words, the evidence extracted from al-Qahtani is so
poisoned by the way it was obtained that even the U.S.
military, operating on foreign soil under much looser
juridical rules, doesn't think it can obtain a conviction that
will stand.
Military prosecutors wanted to lay charges late last year, but
Crawford stayed them.
Guantanamo
Bay prisoners. (Associated Press)
'Life-threatening condition'
In the case of al-Qahtani, his jailers used isolation,
sleep deprivation, fear-instilling psychological tactics and
dogs, as well as prolonged exposure to cold and icy water
while nude, leaving him, as Crawford put it, in
"life-threatening condition."
Other prisoners were subjected to the controlled-drowning and
resuscitation torture called waterboarding, or had their legs
beaten repeatedly while hanging from a wall, shackled.
In at least two cases, both in Afghanistan, the torture — or,
as Bush calls it, "enhanced interrogation" — left prisoners
dead. (In one of these cases, military torturers in
Afghanistan killed a man known as
Dilawar who interrogators had already decided was probably
an innocent man, a taxi driver unfortunate enough to have been
in the wrong place at the wrong time.)
Al-Qahtani, on the other hand, is almost certainly not
innocent. He is reputed to have been sent to America by Osama
bin Laden as the "twentieth hijacker," but was arrested by
suspicious U.S. Customs agents on his way into the States and
deported before he had a chance to participate in the 9/11
attacks.
He was re-arrested several weeks later in Afghanistan, where
he served as a lieutenant to bin Laden.
Tainted evidence
Many here believe al-Qahtani should be prosecuted for war
crimes. But, as David Cole of Georgetown University's Law
School observes, "because of the box created by the Bush
administration, because so much of the evidence is tainted, it
will be impossible to secure convictions against people who
are almost certainly war criminals."
Effectively, the Bush administration gave itself permission to
torture detainees in 2002, about a year after the president
launched his global "war on terror."
A now-notorious Justice Department memo declared that
government agents could inflict pain, as long as it didn't
rise to the level of "organ failure, impairment of bodily
function, or death."
The government's lawyers obediently concluded that laws
outlawing torture do not bind the president because of his
constitutional authority to conduct a military campaign.
Bush and Vice-President Dick Cheney vigorously agreed with
this assessment and for U.S. government agents and soldiers
worldwide, the tone was set.
As accounts of abuses piled up in the months and years that
followed, Bush remained resolute.
Rebuked by the United Nations, human rights groups, jurists,
members of Congress and eventually his own Supreme Court, he
would insist: "We don't torture."
'Black' prisons
Behind the scenes, though, government lawyers worked to
thwart any efforts to prevent what was actually going on in
America's extraterritorial prisons.
When Congress finally acted in 2005, legislating against
torture, Bush issued a secret executive order circumventing
the new law. When Congress tried to rein in the excesses of
CIA interrogators in the secret, so-called "black prisons"
that the agency operates abroad, Bush used his veto to nullify
Congress's intent.
Anyone who objected on grounds of rule of law, or due process,
was painted as a Nervous Nellie who didn't understand the
threat to the American people.
Waterboarding, Cheney declared at one point, was "a
no-brainer."
Other conservatives sneered at the idea of "reading terrorists
their rights."
As recently as this week, his last in office, Bush remained
undeterred: "My view is the techniques were necessary and are
necessary," he told Fox News.
Someone else's problem
Now, particularly as a result of Crawford's admission, the
mess Bush and his team are leaving behind is clearly evident.
And while Barack Obama has promised swift corrective action —
he intends, according to leaks from his transition team, to
order the Guantanamo detention centre closed and to reverse
Bush's torture edicts as a first order of business following
Tuesday's inauguration — the legal bog he's inheriting is deep
and fetid.
There are, according to the government, approximately 250
detainees remaining at Guantanamo. The black prisons located
in spots like Diego Garcia, an atoll in the Indian Ocean, hold
an unknown number of others.
Some of those still being held are very dangerous men, indeed,
and now it may be impossible to successfully prosecute those
who have been tortured.
Guantanamo officials, who used to tell visiting reporters like
me that the prisoners there were "the worst of the worst,"
have released about two-thirds of the detainees they once
held.
Some turned out to be no threat, some were deemed to be
innocent, some returned to the battlefield.
More legal rights
In recent months, the Bush administration has been keen to
dump some of those who remain onto the laps of allies in the
West or the Middle East. But the response has been tepid.
Omar
Khadr is shown in a courtroom sketch in Guantanamo Bay, Cuba
Thursday, May 8, 2008. (Janet Hamlin/CBC/Canadian Press)
Canada, for example, has shown no enthusiasm for
accepting any of them, even
Omar Khadr, who is a Canadian citizen.
Here in the U.S., there is stiff political resistance to any
notion of moving the detainees onto American soil. That would
mean giving them even more legal rights than they already
have.
Then there's the small matter of what to do about the torture
that has already been committed. Some in this country are
demanding an official inquiry.
"Now that a senior administration official has acknowledged
war crimes have been committed — and torture is a war crime —
at a minimum there ought to be a criminal investigation and
charges where appropriate," Prof. Cole of Georgetown Law said
in an interview.
Anticipating this, the CIA has been destroying evidence of
torture. There are also reports some senior intelligence
agents have been taking out insurance policies to cover
potential legal fees.
Some supporters of the administration's policies want
President Bush to issue blanket, pre-emptive pardons before he
leaves office. But Cheney scoffs at the idea of inquiries or
charges and is advising Obama to pause before he reverses any
executive orders.
"Before you start to implement your campaign rhetoric, you
need to sit down and find out precisely what it is we did and
how we did it, because it is going to be vital to keeping the
nation safe and secure in the years ahead," Cheney told CBS
Radio recently.
Faced with the sobering reality of governing, Obama may be
taking note. "I think that was pretty good advice," the
president-elect said about Cheney's remarks.
Like Bush, Obama says the U.S. government will not torture
under his administration, but he would rather not get into too
much detail at this point about what exactly he means when he
says that.
He's now shying away from any bold restrictions on the CIA,
saying he doesn't want the country's spooks "looking over
their shoulders and lawyering."
He also doesn't seem terribly interested in official inquiries
into any Bush-era lawbreaking: "We need to look forward as
opposed to looking backwards," Obama told a television
interviewer this week.
Closing Guantanamo, he now says, will be "more difficult than
a lot of people realize.".............Source
