Or How I Learned to Stop Worrying

In the spring of 2002, the Bush Administration scored a major coup against al Qaeda. The third ranking member of al Qaeda, Abu Zubaydah, was captured in a daring raid in Pakistan. This surely was a major blow to the terrorist organization and a triumph for the Bush Administration in its War on Terror.

News organizations at the time breathlessly reported the capture of Abu Zubaydah, the "perfect terrorist":

The planes arrived shortly after 2am, the city’s mobile phones were shut down, then the police radio went off air. An hour later the FBI was ready to strike.

In an upstairs room in a two-storey house in the Faisal Town suburb of Faisalabad, an industrial city in western Pakistan, a tall 31-year-old man was asleep. Around him, stretched out on pallets on the concrete floor, were a dozen associates: fellow Arabs, Afghans and Pakistanis. The only light inside came from a flickering computer screen and the winking of a fax machine. Just before 4am, on 28 March, the FBI went in.

The man, Zayn al-Abidin Mohamed Husayn, aka Abu Zubaydah, woke as scores of FBI men, shouting and throwing stun grenades, swarmed over the low walls enclosing the house and smashed their way inside.

While his colleagues tried to hold off the FBI with kitchen knives, Zubaydah tried to escape. As he ran, he was shot in the stomach, the groin and the thigh. The FBI took him first to Faisalabad’s Allied Hospital and then to Islamabad, Pakistan’s capital, 170 miles to the north.

This was the stuff of James Bond movies. The Bush Administration was ecstatic:

U.S. officials said they believe Abu Zubaydah can identify names, faces and locations of Al Qaeda operatives the world over and may also know where Usama bin Laden is hiding.

The White House confirmed the capture Tuesday, and while it acknowledged it was a "very serious blow" to Al Qaeda, it also said Americans were still threatened.

White House press secretary Ari Fleischer described Zubaydah as an operational planner and key recruiter for Al Qaeda and a member of bin Laden’s "inner circle" who can provide a treasure-trove of top-to-bottom information about the terrorist group.

"He will be interrogated about his knowledge of ongoing plans to conduct terrorist activities. This represents a very serious blow to Al Qaeda," Fleischer said.

Soon, under "enhanced interrogation techniques", Abu Zubaydah started to sing like a canary. He was a treasure trove of information. He was involved in anything and everything al Qaeda. The Bush Administration had hit upon the mother load. This man was al Qaeda’s James Bond and Austin Powers rolled up into one. He was al Qaeda’s operational coordinator; he was a master of disguise; he was al Qaeda’s chief recruiter; he had briefed the hapless shoe bomber; he had planned to blow up the U.S. embassies in Paris and Sarajevo; he was connected to the plot to blow up Los Angeles International Airport in 1999. He also gave great tips. He tipped off U.S. authorities about a threat to U.S. financial institutions; about "possible al Qaeda attacks on large apartment buildings, shopping malls, supermarkets and restaurants"; about Jose Padilla, the alleged "dirty bomber". In short, he was a super terrorist - sans the evil cape.

He was so dangerous he could not be kept at Guantanamo Bay for fear that he may use some al Qaeda mind meld technique to communicate with other detainees. So, he was "disappeared" into the CIA’s secret prison system somewhere overseas. There he became a prime candidate for some of the cool torture techniques that the Bush Administration loved and cherished. But soon doubts started to emerge about the quality of Mr. Zubaydah’s information.

Nonetheless, torture must go on. Enter John Yoo, a brilliant young lawyer working for the Justice Department. At some point, Abu Zubaydah had stopped being cooperative. So the CIA turned to the Justice Department for guidance on how to extract information from Zubaydah. That request prompted the now infamous "Torture Memo" from Mr. Yoo. Cool and fun techniques such as "waterboarding" were approved for the worst of the worst like Zubaydah. Once those newly sanctioned techniques were applied, Zubaydah was back to his old self again singing like he had never sung before.

Now, however, it has emerged that the reason Mr. Zubaydah’s information seemed so unreliable at the time was because he is mentally ill. It turns out that Abu Zubaydah was not al Qaeda no. 3 like previously touted, but in fact he was a low level "travel agent" who arranged travel for spouses and relatives of al Qaeda members. He also had multiple personalities that were fascinated with what clothes people wore. Ron Suskind, in his book The One Percent Doctrine, lays it out for us:

Abu Zubaydah, his captors discovered, turned out to be mentally ill and nothing like the pivotal figure they supposed him to be. CIA and FBI analysts, poring over a diary he kept for more than a decade, found entries "in the voice of three people: Hani 1, Hani 2, and Hani 3" — a boy, a young man and a middle-aged alter ego. All three recorded in numbing detail "what people ate, or wore, or trifling things they said." Dan Coleman, then the FBI’s top al-Qaeda analyst, told a senior bureau official, "This guy is insane, certifiable, split personality."

Abu Zubaydah also appeared to know nothing about terrorist operations; rather, he was al-Qaeda’s go-to guy for minor logistics — travel for wives and children and the like. That judgment was "echoed at the top of CIA and was, of course, briefed to the President and Vice President," Suskind writes. And yet somehow, in a speech delivered two weeks later, President Bush portrayed Abu Zubaydah as "one of the top operatives plotting and planning death and destruction on the United States." And over the months to come, under White House and Justice Department direction, the CIA would make him its first test subject for harsh interrogation techniques.

So, a low level al Qaeda member who was insane was causing the U.S. law enforcement authorities to jump through hoops chasing phantom al Qaeda plots. Sounds to me like a sinister al Qaeda plot to tire all of us out!

But how could the most powerful nation in the world be given the run around by a mentally ill detainee? It does not seem possible. It turns out that the U.S. response was being driven by George W Bush’s ego and his need to avoid embarrassment:

"I said he was important," Bush reportedly told Tenet at one of their daily meetings. "You’re not going to let me lose face on this, are you?" "No sir, Mr. President," Tenet replied. Bush "was fixated on how to get Zubaydah to tell us the truth," Suskind writes, and he asked one briefer, "Do some of these harsh methods really work?" Interrogators did their best to find out, Suskind reports. They strapped Abu Zubaydah to a water-board, which reproduces the agony of drowning. They threatened him with certain death. They withheld medication. They bombarded him with deafening noise and harsh lights, depriving him of sleep. Under that duress, he began to speak of plots of every variety — against shopping malls, banks, supermarkets, water systems, nuclear plants, apartment buildings, the Brooklyn Bridge, the Statue of Liberty. With each new tale, "thousands of uniformed men and women raced in a panic to each . . . target." And so, Suskind writes, "the United States would torture a mentally disturbed man and then leap, screaming, at every word he uttered."

This would be comic if not for the fact that the United States faces real dangers in this world. Instead of tracking real dangers down, the Bush Administration has been engaged in torturing a mentally ill man just because George W Bush did not want to lose face. There are many absurd reasons why tyrants and abusers torture people around the world - but this has to be one of the most absurd.

In light of the case of Abu Zubaydah, one has to ask how serious the Bush Administration is in defending this country? If given a choice between protecting the President from embarrassment and protecting the United States, which path will this Administration choose? And will torture litter that path?

 [Cross posted at Bloggers Against Torture]

"Even assuming that Hamden is a dangerous individual who would cause great harm or death to innocent civilians given the opportunity, the Executive nevertheless must comply with the prevailing rule of law in undertaking to try him and subject him to criminal punishment. " - Justice John Paul Stevens writing the majority opinion of the United States Supreme Court in Hamdan v. Rumsfeld, Secretary of Defense, et. al.

The United States Supreme Court today rejected the Bush Administration’s contention that it could ignore the United States Constitution and laws and set up kangaroo courts in which to try detainees held at Guantanamo Bay. The Court rejected the argument that the Congress had stripped its jurisdiction by enacting the Detainee Treatment Act of 2005. The Court also held that the Executive Branch must obey the law of war, the Geneva Conventions (including Common Article 3), and the UCMJ. In short, the Court held that the President is not above the law, even in a time of war.

By holding that the President must obey the laws, Justice Stevens took a giant bite out of the Unitary Executive theory that the Bush Administration loves and cherishes so much.  In rather short order, the legal arguments put forth by John Yoo justifying torture now begin to crumble. The Court’s holding that Common Article 3 of the Geneva Conventions binds the actions of the Executive nullifies the argument used by this Administration to exclude parts of Article 3 from the latest Army Field Manual on interrogation. A house of cards built on the fantasy of an unchecked ruler has crumbled today upon colliding with the United States Constitution.

The Bush Administration’s arguments for Executive overreach have never had firm legal grounding. Their grounding has been based on fear and fanaticism. The debate has always been between fanaticism and reason. Today reason won a temporary reprieve. But the fanatics are still in charge of the Ship of State. The Administration’s principal premise, whether it is to justify torture or to justify indefinite detention, has been that the people we are holding are bad, evil, horrible. Therefore, anything we do to them is justified. Every overreaching act of the Bush Administration has been predicated on that fundamental premise.

The Bush Administration tortures a prisoner because it assumes a priori that the prisoner is a terrorist. Therefore, to extract valuable intelligence that might save lives the Administration must torture the terrorist. The bush Administration detains a prisoner indefinitely because it assumes a priori that the prisoner is a terrorist. Therefore, to protect the safety of all Americans the Administration must detain the terrorist indefinitely.

This underlying premise that all we hold are terrorists has emotional appeal to supporters of the Bush Administration and many Americans who are terrified of an unseen and unpredictable enemy. The Administration knows this and never misses an opportunity to perpetuate this notion:

“The important thing here to understand is that the people that are at Guantanamo are bad people.”

“I mean, these are terrorists for the most part. These are people that were captured in the battlefield of Afghanistan or rounded up as part of the al Qaeda network."

”We’ve already screened the detainees there and released a number, sent them back to their home countries. But what’s left is hard core.”  - Vice President Dick Cheney, June 2005

The Administration’s supporters duly follow this line that everyone at Guantanamo Bay and everyone the United States tortures is a terrorist. However, there is plenty of evidence that this is not the case. Many prisoners at Guantanamo Bay were sold to the Americans by enterprising Pakistanis and Afghanis for hefty fees. A large number of these detainees were later found to be innocent and some have been released. There are others at Guantanamo, like Abdur Sayed Rahman and Muhibullah, who are being held there for reasons that defy sanity:

But there are many more, it seems, who sound like Abdur Sayed Rahman, a self-described Pakistani villager who says he was arrested at his modest home in January 2002, flown off to Afghanistan and later accused of being the deputy foreign minister of that country’s deposed Taliban regime.

"I am only a chicken farmer in Pakistan," he protested to American military officers at Guantánamo. "My name is Abdur Sayed Rahman. Abdur Zahid Rahman was the deputy foreign minister of the Taliban."

…

At one review hearing last year, an Afghan referred to by the single name Muhibullah denied accusations that he was either the former Taliban governor of Shibarghan Province or had worked for the governor. The solution to his case should have been simple, Mr. Muhibullah suggested to the three American officers reviewing his case: They should contact the Shibarghan governor and ask him.

But the presiding Marine Corps colonel said it was really up to the detainee to try to contact the governor. Assuming that the annual review board denied his petition for freedom, noted the officer, whose name was censored from the document, Mr. Muhibullah would have a year to do so.

"How do I find the governor of Shibarghan or anybody?" the detainee asked.

"Write to them," the presiding officer responded. "We know that it is difficult but you need to do your best."

"I appreciate your suggestion, but it is not that easy," Mr. Muhibullah said.

The Bush Administration not only detains people without charge who are not terrorists they have also kidnapped and tortured people who are not terrorists. By not following the laws or international Conventions, the Bush Administration has denied itself the tools to determine who is truly a terrorist and who is being unjustly held and tortured. But, based on their principal premise, the distinction between guilt and innocence need not be made.

Having lost the legal fight it remains to be seen if the Bush Administration will be able to stoke the flames of fear enough to convince the American people to look the other way as it continues to torture and detain "terrorists". The Supreme Court has spoken; will the President listen?

Torture needs a rationale to survive. Torture needs a justification. States that torture always find ways to justify torture as an act that is within the law. They use the law as the first weapon of torture. Before the drills are powered up, before the electricity is turned on, before the water is boiled, before the knives are sharpened, it is the lawyer who strikes the first and most lethal blow.

The Nazis were very good at codifying torture. They had brilliant but morally bankrupt lawyers craft legal arguments to justify their increasingly sadistic methods in order to get "information vital to the interests of the State". The world, however, was not impressed and saw evil for what it was - evil. In response to the crimes of the Nazis the United Nations adopted the Universal Declaration of Human Rights (UDHR) in 1948 to try to ensure that the barbarism of the Nazis would never be repeated again. The Preamble to the UDHR states in part:

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,

Whereas it is essential to promote the development of friendly relations between nations,

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,

Whereas Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,

Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge, […]

Noble as it was, the UDHR did not prevent States from engaging in horrific acts of torture. Recognizing the continued practice of torture, The United Nations, in 1984, adopted the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This Convention was supposed to remove once and for all the scourge of torture from the arsenals of civilized nations.

The United Nations did not count on an enterprising young lawyer named John Yoo. In August 2002, while working at the Justice Department John Yoo authored what became known as the "Torture Memo". John Yoo also authored other fine works that any Police State or young Nazi would be proud of, but for today, I would like to focus on his loving treatment of torture. Yoo wrote this memo in response to then White Counsel Alberto Gonzales’ request for a legal justification of "enhanced interrogation techniques" the Bush Administration was learning to master. The Bush Administration needed a legal justification to torture and John Yoo was more than eager to provide one.

John Yoo is a fine and brilliant lawyer. He took to the task of justifying torture with gusto. However, he ran into one big problem. That problem was the UN Convention against Torture. On the face of it, the Convention’s language is pretty clear about what constitutes torture and what the obligations of each State that is a party to the Convention are. The Convention in Article I paragraph 1 defines torture:

For the purposes of this Convention, the term "torture" means 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, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering 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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Yoo argued that the United States defines torture differently than the United Nations and it said so when it ratified the Convention (under the first President Bush). He further argued that no State at the time objected to the US’s narrower definition of torture. Therefore, the US was not committing torture. Furthermore, he argued, even if the United States was committing torture, no international court had the authority to hold the United States in violation of the Convention. Nana nana boo boo! Yoo concluded his schoolboy argument:

Thus, we conclude that the Bush Administration’s understanding created a valid and effective reservation to the Torture Convention. Even if it were otherwise, there is no international court to review the conduct of the United States under the Convention. In an additional reservation, the United States refused to accept the jurisdiction of the ICJ (which, in any event, could only hear a case brought by another state, not by an individual) to adjudicate cases under the Convention. Although the Convention creates a Committee to monitor compliance, it can only conduct its studies and has no enforcement powers.

It is no small coincidence that Yoo was also the chief proponent of the Presidential Signing Statement in the Bush Administration. He argues that laws and conventions can be interpreted by the President in any way he chooses. So, the President never actually violates a law or a convention, he simply reinterprets it.

In his defense of his memo and Alberto Gonzales, John Yoo unabashedly defended the American definition of torture by blaming Congress:

The Senate and Congress’ decisions provided the basis for the Justice Department’s definition of torture:

"Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture (under U.S. law), it must result in significant psychological harm of significant duration, e.g., lasting for months or even years. . . . We conclude that the statute, taken as a whole, makes plain that it prohibits only extreme acts.'’

Besides, he argued, the United States did not accept the entire Convention; it only accepted the "torture" part (with modified definition) and not the "cruel, inhuman and degrading punishment" part:

Not only does the very text of the convention recognize the difference between cruel, inhuman and degrading treatment and torture, but the United States clearly chose to criminalize only torture.

I suppose it would not help to point out to Mr. Yoo that the Convention is "against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment". The "other" in the Convention’s title and in its text would seem to most English speakers to clearly indicate that "torture" is a subset of "cruel, inhuman or degrading treatment or punishment" and not separate from "cruel, inhuman or degrading treatment or punishment". But who am I to quibble with such a fine lawyer?

Last month the United Nations Committee Against Torture strongly criticized the United States for clear violations of the Convention Against Torture. I am sure that does not bother Mr. Yoo. After all, as he has stated, so what? They can’t force the United States to stop torturing.

Behind the tortured legal arguments lies the mind of a monster. In December 2005, during a debate at Norte Dame University, John Yoo acknowledged that no treaty or law prevents the President from authorizing torture of a child, including "crushing the testicles" of the child. First the State decides to torture, and then it uses the law to justify the torture. Dr. Joseph Mengele would tear up with pride.

Torture at its most basic level is carried out by jackbooted thugs who inflict pain and humiliation upon a helpless human being. But the thugs are just instruments that carry out the policy. In that the actual torturers are like the electric drills or the electrodes used to inflict the pain. These thugs are the mindless foot soldiers of the State. The real criminals are the ones who rationalize torture, who give it breath, who give it life. They often do not see the violence and cruelty their policies and rationalizations unleash. They are far removed from the blood and the feces. They do not have to wash their hands of the stench of death or decay. They are the real perpetrators of torture. They are the ones who need to be stopped if torture is to be eradicated.

These poisonous minds, like John Yoo, have infected the body of the United States with their poisonous policy. For the United States to recover from this sickness of torture, it must hold these sinister minds accountable and reject their kind. These policies are unworthy of a nation that was once the beacon of human rights. Shame on us until we end the torture.