Houston Criminal Defense Attorney John Floyd Discusses Bush Administrations “Torture” Policy and Downstream Consequences
In 1994 America ratified a treaty entitled “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.” This treaty defined “torture” as “ … any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession,” when it is “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”
In May 2008 the U.S. Justice Department’s Office of Inspector General released a report that revealed American military and intelligence officials have engaged in severe interrogation tactics against terror suspects since September 11, 2001. The OIG report said that FBI agents observed and at times participated in these interrogations. As a rule the law enforcement agency was uncomfortable with the harsh methods used by CIA and military interrogators to extract information from terror suspects. The FBI observed the following of what it described as “detainee treatment” at Quantanamo Bay:
- Beating or physically abusing a detainee
- Prolonged shackling and stress positions
- Sleep deprivation or sleep disruption
- Extreme temperatures
- Use of working dogs
- Isolation
- Mistreatment of the Koran
- Touching or acting toward a detainee in a sexual manner
- Use of bright flashing lights or loud music
- Use of duct tape on detainees
- Forced shaving
- Withholding medical care
- Forced cell extractions
- Placing women’s clothing on a detainee
- Transfer to another country for more aggressive interrogation
- Threatened transfer to another country
- Threatening a detainee’s family
- Depriving a detainee of food and water
- Depriving a detainee of clothing
- FBI impersonation
The FBI observed the following “detainee treatment” in Afghanistan:
- FBI knowledge of detainee beating deaths
- Beating, choking, strangling, or other abusive handling of detainees
- Sexually abusive or humiliating contact
- Abusive body cavity searches
- Stressful or painful positions or calisthenics
- Deprivation of clothing
- Hooding or blindfolding
- Sleep deprivation or interruption
- Undocumented “Ghost” detainees
- Actual or threatened transfer to a third county
- Isolation of detainees
- Impersonation of FBI agents
OIG report, pps. 174-260.
By any rational definition, the foregoing “treatment” is torture. It violates the Convention Against Torture treaty the United States ratified nearly a quarter of a century ago. The OIG report, however, refused to call it “torture,” electing instead to refer to it as “abuse.” The report stated: “In sum, while our report concluded that the FBI could have provided clearer guidelines earlier, and while the FBI and DOJ could have pressed harder for resolution of FBI concerns about detainee mistreatment, we believe the FBI should be credited for its conduct and professionalism in detainee interrogations in the military zones and in generally avoiding participation in detainee abuse.” Id., OIG report, p. v.
Military interrogators began interrogating terror suspects at GTMO in January 2002 using “Intelligence Interrogation” guidelines contained in the Army Field Manual 34-32. In addition to conventional interrogation techniques, the field manual allows military interrogators to employ non-conventional techniques such as “Fear Up” – a technique that exploits a subject’s pre-existing fears allowing the interrogator to behave in an “overpowering manner with a loud and threatening voice.” Id., at vii.
Not satisfied with the results being produced by these traditional military interrogation techniques, former Defense Secretary Donald Rumsfeld in December 2002 personally approved “additional techniques for use on detainees at GTMO, including stress positions for a maximum of 4 hours, isolation, deprivation of light and auditory stimuli, hooding, 20-hour interrogations, removal of clothing, and exploiting a detainee’s individual phobias (such as fear of dogs).” Id., at vii-viii.
These enhanced Rumsfeld interrogation techniques drew so much media attention and concern from the FBI that the defense secretary rescinded his approval of them on January 15, 2003. This high ranking member of President Bush’s administration had approved “torture” by referring to it as “techniques.” Rumsfeld took his lead from Vice President Dick Cheney who, five days after the 9/11 terrorist attacks, told NBC’s Meet The Press that the United States had to move to “the dark side” of intelligence gathering.
“We got to spend time in the shadows in the intelligence world,” the Vice President told host Tim Russert. “A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we’re going to be successful. That’s the world these folks operate in, and so it’s going to be vital for us to use any means at our disposal, basically, to achieve our objective.”
The “any means” referred to by the Vice President included what the FBI called “torture techniques.” The New York Times, citing the OIG report, said these “intelligence” gathering techniques included what “[FBI] agents described [as] seeing … inmates handcuffed in a fetal position for up to 24 hours, left to defecate on themselves, intimidated by dogs, made to wear women’s underwear and subjected to strobe lights and extreme heat and cold.”
Following the release of the OIG report, and the dissemination of its compelling evidence of “abuse” (and that is a tame characterization for torture) and after the Iceland Parliament adopted a resolution condemning these “abuses,” Secretary of State Condoleezza Rice told Associated Press that there had been no “human rights abuses” at Guantanamo.
“I strongly object to the notion that there are human rights violations at Guantanamo as is suggested by the [Iceland] resolution,” the Secretary was quoted by AP. She advised Icelandic lawmakers to read a report prepared by the Organization for Security in Europe which, she said, “found no evidence of systematic violations at Guantanamo.”
While pointing out that the Bush administration is committed to the closure of military detention facility, she added that “there is, of course, the problem of what to do with the people that are there. The United States has been trying to return people to their places of origin and in many cases we have been able to do that. In some circumstances, unfortunately, we have done that only to meet these people again on the battlefield. [These people] should not be released on unsuspecting populations.”
In October 2007 the New York Times obtained U.S. Justice Department documents that showed the agency had supported the use of “harsh interrogation techniques” that included what the newspaper called “head-slapping, simulated drowning (more commonly known as water boarding) and frigid temperatures.”
President Bush, in response to the Times report, vehemently stated: “This government does not torture people.”
It is difficult to fathom what the President perceives as “torture.” His definition is certainly broader and more expansive than the definition provided by the Convention Against Torture treaty. It stretches the bounds of normal reason and logic to say that “interrogation techniques” that include water boarding, beatings that lead to death, food and sleep deprivation, denial of medical treatment, sexual and physical degradation, and 20-hour forced interrogation sessions on the heels of extreme sensory deprivation do not constitute “torture.”
The OIG report cites one instance where the FBI witnessed a female military interrogator bending a detainee’s thumbs back while “grabbing his genitals … to cause him pain.” The observing FBI agent testified that this was not a “case of a rogue interrogator acting on her own” but one who had been encouraged by Defense Department officials “to get as close to the torture statute line as possible.”
Former President Jimmy Carter believes military and intelligence interrogators have repeatedly crossed the “torture statute line.” Several days after the 2007 Times report, Carter told CNN’s Wolf Blitzer that the United States “has abandoned the basic principle of human rights” by engaging in torture. The former president added that “we’ve said that the Geneva Conventions do not apply to those people in Abu Ghraib prison and Guantanamo, and we’ve said we can torture prisoners and deprive them of an accusation of a crime to which they are accused … but you can make your own definition of human rights and say we don’t violate them, and you can make your own definition of torture and say we don’t violate them.”
A White House spokesperson quickly responded to Carter’s denunciation: “Our position is clear. We don’t torture. It’s just sad to hear a former president speak like that.”
The evidence in the public record which has been conceded to by the Bush administration, whether called “harsh interrogation techniques” or “detainee abuses,” clearly shows that the United States has consistently and repeatedly engaged in the “torture” of terror suspects since September 11, 2001. The New York Times put it this way in an editorial:
“These were not random acts. It is clear from the inspector general’s report that this was organized behavior by both civilian and military interrogators following the specific orders of top officials. The report shows what happens when an American president, his secretary of defense, his Justice Department and other top officials corrupt American law to rationalize and authorize the abuse, humiliation and torture of prisoners.”
The OIG report said the situation became so grave that a few FBI compiled a “war crimes file” but Justice Department superiors quickly quashed these efforts, determined not to let CIA and military interrogators, as well as supervising Defense Department officials, be held accountable for the crimes they have committed.
Besides the damning evidence against her in the OIG report, Secretary Rice was exposed in an ABC News report last April as having been one of the first White House officials to formally approve “torture” methods. In a 2002 White House Situation Room meeting, according to ABC, former Attorney General John D. Ashcroft questioned the “harsh interrogation techniques” then being employed on terror suspects. Rice, who was then Bush’s national security adviser and chairman of the meeting, signed off on the techniques “whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called water boarding …,” according to the news agency. ABC was quite specific in its report that Rice came down on the side of water boarding.
While Bush administration officials continue to deny the allegations of torture, the evidence that terror suspects have been, and are continuing to be, tortured mounts. Human Rights Watch, an international group dedicated to protecting human rights worldwide, recently reported [June 2008] that there are approximately 270 prisoners at Guantanamo, most of whom have been in custody for more than six years without being charged with a crime. HRW reported that 185 of these inmates are being held in maximum security lockdown that is “akin to and in some respects more restrictive than many ‘supermax’ prisons in the United States.” The international watchdog group said these conditions violate national and international standards of human rights:
“Binding human rights obligations require the United States to treat all persons in its custody ‘with humanity and with respect for the inherent dignity of the human person.’ They also prohibit the United States from subjecting anyone in its custody to ‘cruel, inhuman, or degrading treatment.’
“The U.S. Supreme Court has ruled that prisoners at Guantanamo are also protected by the humane treatment requirements of Common Article 3 of the Geneva Convention, which prohibit ‘cruel, humiliating and degrading treatment.’
“In February 2006 five United Nations experts issued a report on Guantanamo, criticizing ‘prolonged detention in Maximum Security units’ and warning that prolonged solitary confinement violates the rights of detainees under binding provisions of the International Covenant on Civil and Political Rights. The report also noted that the ‘treatment of detainees since their arrests, and the conditions of their confinement, have had profound effects on the mental health of many of them,’ and warned that the ‘severe mental health consequences’ are likely to impose health burdens on the detainees and their families for years to come.
“Both the UN Committee against Torture and the UN Human Rights Committee have also criticized the United States for conditions in supermax prisons—prisons whose conditions are, as explained above, in many ways
similar to the conditions in Guantanamo’s high-security units. The Human Rights Committee urged the US government to reform these prisons in accordance with the UN minimum standards for the treatment of detainees. These standards require, among other things, that cells have natural light and fresh air, and that prisoners be allowed regular communications with family and friends, and regular access to the news—none of which is provided to the prisoners held in Guantanamo’s Camp 5 and Camp 6.
“The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), the expert body on conditions of confinement for the Council of Europe, has similarly warned that the ‘application of a solitary confinement-type regime … can have very harmful consequences for the person concerned. Solitary confinement can, in certain circumstances, amount to inhuman and degrading treatment; in any event, all forms of solitary confinement should be as short as possible’ The CPT has also highlighted the importance of providing prisoners access to natural light, regular educational and recreational opportunities, and regular contact—including phone calls—with family members. None of this has been provided to the detainees in maximum-security units in Guantanamo.
“The American Correctional Association’s Standards for Adult Correctional Institutions also requires natural light in each inmate’s room or cell—something that is not available to detainees in Camps 5 and 6.”
Kidnapping of terror suspects on foreign soil, secret CIA prisons, “harsh interrogation techniques” such as water boarding, denial of due process of law by refusing to charge terror suspects with crimes, elimination of access to writ of habeas corpus, denial of right to challenge conditions of confinement in U.S. courts, the inability to bring civil claims against government agencies for unlawful behavior, denial of medical treatment, denial of access to family contact, and prolonged solitary confinement amounts to systematic torture.
California Rep. Dana Rohrabacher sees the issue differently. In a recent Newsweek (June 16, 2008), the congressman compared the use of women’s panties during interrogation of terror suspects to “hazing pranks from some fraternity,” saying it certainly was not torture. “I, in no way, will ever apologize that someone put panties on the head of this 9/11 terrorist,” Rep. Rohrabacher.
To compare college kids donning panties over their heads during a “frat party” to a pair of panties being placed over a terror suspect’s head while his genitals are being squeezed and while he is being attacked by guard dogs, all of which come after a “water boarding” session, reflects that Rep. Rohrabacher is either completely ill-informed about the subject of torture or feels that human rights abuses are acceptable “harsh interrogation techniques.”
Either way, the Rohrabacher attitude vividly demonstrates that America is a long way from being able to honor its commitment to the “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” treaty it ratified in 1994 not to engage in torture of “enemy combatants.”