CRIMINAL JURISDICTION

Legal Opinions Redefine Torture, Criminal Acts

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

The Bush administration’s 2001 declaration of “war on terror” critically—if not irreparably—injured the constitutional soul of America. This nation can no longer look other civilized countries in directly in the eye and unequivocally say it is the moral leader of the “free world.” The recently released CIA “terror memos” demonstrate that during the eight-year presidential tenure of George W. Bush the United States became a nation that subscribed almost exclusively to the base Machiavellian political dogma of “the end justifies the means.”  Those who have defended, and continue to defend, the “torture” practices carried out under the Bush administration say they were a necessary weapon in the “war on terror” declared by President Bush after the three September 11, 2001 terror attacks against the United States by the international terrorist organization, al-Qaeda.

In the wake of that war declaration, the nation’s Central Intelligence Agency established “black site” (secret) prisons in friendly countries across Europe. The CIA, and its contracted mercenaries, began to search for and round up “terror suspects” around the globe. Many of the suspects were kidnapped off public streets in their home countries and whisked away to one of the CIA’s “black site” prisons. Most of those “terror suspects” were ultimately designated by the military term as “enemy combatants” and turned over to the military to be housed in the Guantanamo Bay prison in Cuba. These “enemy combatants,” most of whom were Arab foreign nationals, enjoyed no “constitutional” protections such as right to a public and speedy trial by jury, right to confront and cross examine their accusers, privilege against self-incrimination, or the right to habeas corpus.

One of the first “high-valued” terror suspects captured by the CIA was Abu Zubaydah, the highest ranking member of al-Qaeda captured at the time. A hardcore operative of the terrorist organization and personal confidant of Osama bin Laden, Zubaydah was captured on March 28, 2002 in Faisalabad, Pakistan after being shot three times in an attempt to evade capture. It became immediately clear to the CIA that he was not about to cooperate with American authorities about al-Qaeda’s past or future terrorist attacks against the United States and its allies.

From the moment of his capture, the CIA had aggressively interrogated Zubaydah to force his cooperation without much success. The intelligence agency decided to escalate from harsh interrogation methods to “torture” to get him to talk. The agency, however, knew torture is explicitly prohibited by Section 2340A of title 18 of the United States Code; and being fearful of future congressional and media backlash, the agency sought, and received, legal cover from the U.S. Justice Department to violate this law. (more…)