Saturday, April 25, 2009

Torture Used to Try to Link Saddam with 9/11

Torture Used to Try to Link Saddam with 9/11

 

by Marjorie Cohn

 

submitted to portside by the author

 

April 24, 2009

 

When I testified last year before the House Judiciary

Committee's Subcommittee on the Constitution, Civil

Rights, and Civil Liberties about Bush interrogation

policies, Congressman Trent Franks (R-Ariz) stated that

former CIA Director Michael Hayden had confirmed that

the Bush administration only waterboarded Khalid Sheikh

Mohammed, Abu Zubaydah, and Abd al-Rahim al-Nashirit

for one minute each.  I told Franks that I didn't

believe that. Sure enough, one of the newly released

torture memos reveals that Mohammed was waterboarded

183 times and Zubaydah was waterboarded 83 times. One

of Stephen Bradbury's 2005 memos asserted that

"enhanced techniques" on Zubaydah yielded the

identification of Mohammed and an alleged radioactive

bomb plot by Jose Padilla. But FBI supervisory special

agent Ali Soufan, who interrogated Zubaydah from March

to June 2002, wrote in the New York Times that Zubaydah

produced that information under traditional

interrogation methods, before the harsh techniques were ever used.

 

Why, then, the relentless waterboarding of these two

men? It turns out that high Bush officials put heavy

pressure on Pentagon interrogators to get Mohammed and

Zubaydah to reveal a link between Saddam Hussein and

the 9/11 hijackers, in order to justify Bush's illegal

and unnecessary invasion of Iraq in 2003, according to

the newly released report of the Senate Armed Services

Committee. That link was never established.

 

President Obama released the four memos in response to

a Freedom of Information Act request by the ACLU. They

describe unimaginably brutal techniques and provide

"legal" justification for clearly illegal acts of

torture and cruel, inhuman or degrading treatment. In

the face of monumental pressure from the CIA to keep

them secret, Obama demonstrated great courage in

deciding to make the grotesque memos public. At the

same time, however, in an attempt to pacify the

intelligence establishment, Obama said, "it is our

intention to assure those who carried out their duties

relying in good faith upon legal advice from the

Department of Justice that they will not be subject to prosecution."

 

In startlingly clinical and dispassionate terms, the

authors of the newly-released torture memos describe

and then rationalize why the devastating techniques the

CIA sought to employ on human beings do not violate the

Torture Statute (18 U.S.C. sec. 2340).

 

The memos justify 10 techniques, including banging

heads into walls 30 times in a row, prolonged nudity,

repeated slapping, dietary manipulation, and dousing

with cold water as low as 41 degrees. They allow

shackling in a standing position for 180 hours, sleep

deprivation for 11 days, confinement of people in small

dark boxes with insects for hours, and waterboarding to

create the perception they are drowning. Moreover, the

memos permit many of these techniques to be used in

combination for a 30-day period. They find that none of

these techniques constitute torture or cruel, inhuman

or degrading treatment.

 

Waterboarding, admittedly the most serious of the

methods, is designed, according to Jay Bybee, to induce

the perception of "suffocation and incipient panic,

i.e. the perception of drowning." But although Bybee

finds that "the use of the waterboard constitutes a

threat of imminent death," he accepts the CIA's claim

that it does "not anticipate that any prolonged mental

harm would result from the use of the waterboard." One

of Bradbury's memos requires that a physician be on

duty during waterboarding to perform a tracheotomy in

case the victim doesn't recover after being returned to an upright position.

 

As psychologist Jeffrey Kaye points out, the CIA and

the Justice Department "ignored a wealth of other

published information" that indicates dissociative

symptoms, changes greater than those in patients

undergoing heart surgery, and drops in testosterone to

castration levels after acute stress associated with

techniques that the memos sanction.

 

The Torture Statute punishes conduct, or conspiracy to

engage in conduct, specifically intended to inflict

severe physical or mental pain or suffering. "Severe

mental pain or suffering" means the prolonged mental

harm caused by or resulting from either the intentional

infliction or threatened infliction of severe physical

pain or suffering, or from the threat of imminent death.

 

Bybee asserts that "if a defendant acts with the good

faith belief that his actions will not cause such

suffering, he has not acted with specific intent." He

makes the novel claim that the presence of personnel

with medical training who can stop the interrogation if

medically necessary "indicates that it is not your

intent to cause severe physical pain."

 

Now a federal judge with lifetime appointment, Bybee

concludes that waterboarding does not constitute

torture under the Torture Statute. However, he writes,

"we cannot predict with confidence whether a court

would agree with this conclusion."

 

Bybee's memo explains why the 10 techniques could be

used on Abu Zubaydah, who was considered to be a top Al

Qaeda operative. "Zubaydah does not have any pre-

existing mental conditions or problems that would make

him likely to suffer prolonged mental harm from [the

CIA's] proposed interrogation methods," the CIA told

Bybee. But Zubaydah was a low-ranking Al Qaeda

operative, according to leading FBI counter-terrorism

expert Dan Coleman, who advised a top FBI official,

"This guy is insane, certifiable, split personality."

This was reported by Ron Suskind in his book, The One

Percent Doctrine.

 

The CIA's request to confine Zubaydah in a cramped box

with an insect was granted by Bybee, who told the CIA

it could place a harmless insect in the box and tell

Zubaydah that it will sting him but it won't kill him.

Even though the CIA knew that Zubaydah had an

irrational fear of insects, Bybee found there would be

no threat of severe physical pain or suffering if it

followed this procedure.

 

Obama's intent to immunize those who violated our laws

banning torture and cruel treatment violates the

President's constitutional duty to "take Care that the

Laws be faithfully executed."

 

U.S. law prohibits torture and cruel, inhuman or

degrading treatment, and requires that those who

subject people to such treatment be prosecuted. The

Convention against Torture compels us to refer all

torture cases for prosecution or extradite the suspect

to a country that will undertake a criminal investigation.

 

Obama has made a political calculation to seek amnesty

for the CIA torturers. However, good faith reliance on

superior orders was rejected as a defense at Nuremberg

and in Lt. Calley's Vietnam-era trial for the My Lai

Massacre. The Torture Convention provides

unequivocally, "An order from a superior officer or a

public authority may not be invoked as a justification

for torture."

 

There is evidence that the CIA was using the illegal

techniques as early as April 2002, three to four months

before the August memo was written. That would

eliminate "good faith" reliance on Justice Department

advice as a "defense" to prosecution.

 

The Senate Intelligence Committee revealed that

Condoleezza Rice approved waterboarding on July 17,

2002 "subject to a determination of legality by the

OLC." She got it two weeks later from Bybee and John

Yoo. Rice, Dick Cheney, John Ashcroft, Alberto Gonzales

and George Tenet reassured the CIA in spring 2003 that

the abusive methods were legal.

 

Obama told AP's Jennifer Loven in the Oval Office:

"With respect to those who formulated those legal

decisions, I would say that is going to be more of a

decision for the Attorney General within the parameters

of various laws, and I don't want to prejudge that." If

Holder continues to carry out Obama's political agenda

by resisting investigations and prosecution, Congress

can, and should, authorize the appointment of a special

independent prosecutor to do what the law requires.

 

The President must fulfill his constitutional duty to

ensure that the laws are faithfully executed. Obama

said that "nothing will be gained by spending our time

and energy laying blame for the past." He is wrong.

There is more to gain from upholding the rule of law.

It will make future leaders think twice before they

authorize the cruel, illegal treatment of other human beings.

 

Marjorie Cohn is a professor at Thomas Jefferson

School of Law and president of the National Lawyers

Guild. She is author of Cowboy Republic: Six Ways the

Bush Gang Has Defied the Law and co-author of the new

book, Rules of Disengagement: The Politics and Honor of

Military Dissent. Her articles are archived at

www.marjoriecohn.com.

 

=====

Portside aims to provide material of interest

to people on the left that will help them to

interpret the world and to change it.

 

Subscribe: portside.org/subscribe

 

No comments: