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.

The Justice Department first provided the CIA with unlawful “legal cover” on July 24 and July 26, 2002 with verbal torture approval before providing the intelligence agency with written approvals beginning on August 1, 2002. The Justice Department based its criminal decision on information provided to it by the CIA that Zubaydah had information about al-Qaeda but had refused to divulge it. The CIA suggested that more aggressive torture techniques would have to be employed to get him to reveal this information. In its first written August 1, 2002 torture approval memo, the Justice Department informed John Rizzo, the CIA’s Acting General Counsel, that the intelligence agency could torture Zubaydah because:

“ … he is withholding information regarding terrorist networks in the United States or Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas. Zubaydah has become accustomed to a certain level of treatment and displays no signs of willingness to disclose further information. Moreover, your intelligence indicates that there is currently a level of ‘chatter’ equal to that which preceded the September 11 attacks. In light of the information you believe Zubaydah has and the high level of threat you believe now exists, you wish to move the interrogations into what you have described as an ‘increased pressure phase’.”

The Justice Department then approved the ten interrogation techniques suggested by the CIA to force Zubaydah to give up the information it was seeking:

  1. Attention Grasp – grasping the suspect with both hands, “one hand on each side of the coHal’ opening [and] in a controlled and quick motion” drawing the suspect toward the interrogator.
  2. Walling – the suspect is placed against a flexible false wall with his heels touching the wall. The interrogator snatches the individual forward and then slams him against the wall. A rolled towel or hood is placed around the head and neck to prevent whiplash. The wall is designed so that a loud noise is made when the suspect is slammed into it inducing shock and surprise in the suspect.
  3. Facial Hold – an open palm is placed on either side of the suspect’s face to keep the head immobile.
  4. Facial Slap (Insult Slap) – a slap across the face designed to induce humiliation, shock, surprise; something particularly offensive to Arab men.
  5. Cramped Confinement – placing the suspect in a confined space that severely restricts his movements, and based upon the size of the space, the suspect is held virtually immobile for 2 to 18 hours.
  6. Wall Standing – the suspect is forced to stand four to five feet from a wall with feet spread shoulder width with his arms stretched out in front of him with fingertips touching the wall. The suspect’s entire body weight, therefore, is supported by his fingertips. He cannot move or re-position his hands or feet. The muscle fatigue induced can be excruciating.
  7. Stress Positions – a variety is positions which, like wall standing, produce severe muscle fatigue. Two of the positions used on Zubaydah included forcing him to sit on the floor with his legs extended straight out in front of him with his arms raised above his head; and kneeling on the floor with his body leaning back at a 45 degree angle.
  8. Sleep Deprivation – deprives a suspect of his normal ability to think and resist; and produces abnormal reactions. The Justice Department authorized that Zubaydah could be deprived of sleep for up to 11 days.
  9. Insects Placed In Confinement Box – Zubaydah had an abnormal fear of poisonous insects. The Justice Department authorized that CIA interrogators could place a non-poisonous stinging insect in a cramped box with Zubaydah but lead him to believe the insect was poisonous.
  10. Water Boarding – a suspect is bound tightly to a declining board four to seven feet in length with his feet elevated, and a cloth placed over his forehead and eyes. Water is then poured over the cloth as the cloth is lowered to cover the nose and mouth restricting the suspect’s air flow and increasing the level of carbon dioxide his blood. The increased level of carbon dioxide produces a suffocation-drowning effect forcing the suspect not to breathe any water into his lungs. The water pouring continues for 20 to 40 seconds before the cloth is removed and the suspect allowed to take three or four full breaths. The process is repeated, and repeated, and repeated during 20 minute sessions.

There is no doubt that everyone involved in the effort to get Zubaydah to talk knew that these interrogation techniques (“increased pressure phase”) were forms of torture strictly prohibited by federal law, particularly water boarding. In February 2008 University of Pennsylvania historian Ed Peters told National Public Radio “water boarding” is a torture technique historically known as the “water cure” or tormenta de toca. Peters said water boarding was a “normal incident of law [enforcement]” used to extract confessions from suspects before the period of Enlightment.

NPR reported that Americans first used water boarding during the Spanish-American War. At least one American soldier was tried and convicted of using this interrogation technique. An Army judge advocate called it “torture.” And in 1947, following Japan’s defeat in World War II, the United States convicted a Japanese officer named Yukio Asano of using water boarding on American civilians and sentenced him to 15 years at hard labor. Finally, in 1968 the Washington Post published a photograph of a U.S. soldier supervising the water boarding of a captured North Vietnamese soldier. The caption under that photo said the technique produced “a flooding sense of suffocation, drowning, meant to make him talk.” The Army launched an investigation and two months later court-martialed the American soldier shown in the photo.

Despite this historical evidence to the contrary, the Bush administration never conceded that “water boarding” or what it called “enhanced interrogation techniques” were “torture.” President Bush personally told Americans, and the world community, that the United States “does not torture.” The recently released “torture memos” indisputably reveal that the president was lying; that not only the president but Vice President Dick Cheney, Defense Secretary Donald Rumsfeld, Attorney General John Ashcroft, and CIA Director George Tenet—and scores of their aids and advisors—also knew that terror suspects were being tortured after 9/11 in violation of the laws of the United States and the international community.

We agree with the views expressed in an April 19, 2009 editorial by The New York Times that:

“To read the four newly released memos on prisoner interrogation written by George W. Bush’s Justice Department is to take a journey into depravity.

“Their language is the precise bureaucratese favored by dungeon masters throughout history. They detail how to fashion a collar for slamming a prisoner against a wall, exactly how many days he can be kept without sleep (11), and what, specifically, he should be told before being locked in a box with an insect—all to stop just short of having a jury decide that these acts violate the laws against torture and abusive treatment of prisoners.

“In one of the more nauseating passages, Jay Baybee, then an assistant attorney general and now a federal judge, wrote admiringly about a contraption for waterboarding that would lurch a prisoner upright if he stopped breathing while water was poured over his face. He praised the Central Intelligence Agency for having doctors ready to perform an emergency tracheotomy if necessary.

“These memos are not an honest attempt to set the legal limits on interrogations, which was the authors’ statutory obligation. They were written to provide legal immunity for acts that are clearly illegal, immoral and a violation of this country’s most basic values.

“It sounds like the plot of a mob film, except the lawyers asking how much their clients can get away are from the CIA, and the lawyers coaching them on how to commit the abuses are from the Justice Department. And it all played out with the blessing of the defense secretary, the attorney general, the intelligence director and, most likely, President Bush and Vice President Dick Cheney.”

These government leaders defended “enhanced interrogation techniques” used against Zubaydah and other terror suspects as necessary to protect this country’s “national security interests.” Specifically, they said it not only prevented planned terrorist attacks in this country but kept us “safe” from future attacks. Thus, the “war on terror” effectively trumped the rule of law, human rights, and our international obligations under the guise of “national security.” In reality, that war transformed America into a lawless, “rogue” nation during the Bush tenure as president. There is no other way to put it.

And what are the realities of truly keeping Americans “safe?” In the last 26 years, there have been three major terror attacks in the United States: the 1993 bombing of the World Trade Center that killed six people; the 1995 Oklahoma City bombing that killed 168 people; and the three simultaneous attacks carried out on September 11, 2001 that killed a total of 3,203 people. Altogether, 3377 people died in these three terror attacks on U.S. soil.

The Bush administration proudly proclaimed that it what the “war on terror” kept Americans “safe” from—death caused by terrorism. “Keep Americans safe from terror” became the political mantra of the Bush administration in the wake of 9/11. Yet during the same period hundreds of thousands of Americans unnecessarily died each year because of government deregulations, lack of governmental enforcement and oversight, and political corruption. The Center for Disease Control reported that 5,000 people died each year due to some food-related illness because of inadequate food safety inspections by the FDA; 100,000 died each year from legal drugs approved by the FDA; 20,000 died each year from defective products because of lack of effective governmental oversight; 62,000 died from toxic chemical exposure because of ineffective EPA controls and monitoring; and 195,000 died each year in hospitals due to preventable mistakes in the health care delivery system and many of their families are unable to recover damages because of Republican-inspired “tort reforms.”

While the Bush administration consumed itself with its “war on terror,” the public record is clear that the administration either caused or allowed hundreds of thousands of Americans to have their lives cut short because the government was not doing what is legally required to do to protect them, to keep them safe from corporate and business leaders.

It was also during the Bush administration that banks and other financial institutions were allowed rape and plunder the soul of the American economy. Billions in personal wealth and life-savings of everyday hard-working, tax-paying Americans were wiped out by purveyors of corporate greed as they were wined and dined by the Bush administration and a Republican-controlled Congress.

Vice President Cheney’s dementia-like mumblings about the “war on terror” keeping America safe notwithstanding, that war served not only to destroy this nation’s moral standing in the international community but served as a political diversion that allowed companies owned and controlled by wealthy Americans to cause the deaths of hundreds of thousands of innocent people and to destroy the economic well-being of millions more in this country. How in God’s name was that keeping America safe?

Current CIA Director Leon Panetta recently announced that no CIA officer will be “investigated, much less punished” for engaging in the torture of Zubaydah or other terror suspects. President Obama endorsed this decision. It was, and remains, a questionable decision. And to add insult to this injury, Americans, and all their future generations, are now being forced to pay for, through bailouts and stimulus packages, the very corporate greed, criminal misconduct, and business mismanagement which nearly caused the economic collapse of this nation.

We conclude by saying that terrorism should not be America’s “greatest fear.” It greatest fear should be presidents who lie to us, force us into unnecessary wars paid for on our taxpayer credit cards, and then refuse to provide our troops with adequate equipment necessary to wage those wars as safely as possible; or corporate CEOs who take advantage of the public trust to enrich themselves and maintain a lifestyle of personal jets, 15 bedroom mansions, and year-round European vacations with our life savings; or corrupt politicians who use their elected positions for self-enrichment or to gratify perverse sexual appetites and those other “career” politicians who manipulate public fears and prejudices with irresponsible rhetoric about states rights, succession, illegal immigration, and government spending in order to divide and conquer the electorate with unfounded charges that the nation is rushing headlong into an era of socialism.

If the government of the United States of America cannot hold those who authorized and conducted the illegal “torture” sessions accountable for their criminal actions, then this nation has neither the legal nor moral authority to press for the apprehension and prosecution of the leaders of other “rogue” nations that torture their own citizens or the citizens of other nations.  It is America’s double standard, projected when vigorously pushing democracy and the rule of law abroad, while blatantly ignoring those same values when it is in our interest, that have eroded this great country’s moral and visionary authority.

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