In 1988, when Ronald Reagan signed the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), and declared that it marked “a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment,” the commitment of the United States to eradicating the use of torture was made clear, as were the terms of reference regarding the meaning of torture.
As defined in Article 1 of CAT, torture means “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person,” whether to secure information or a confession, as punishment, or as intimidation or coercion of any kind. There are, moreover, no excuses for this absolute prohibition to be broken. As Article 2 states, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”
After the 9/11 attacks, however, when senior officials in the Bush administration, led by Vice President Dick Cheney, declared a “War on Terror,” they also decided that numerous national and international laws and treaties — including the Geneva Conventions and the U.N. Convention Against Torture — were an inconvenience that prevented them from seizing prisoners and interrogating them as they saw fit. As a result, prisoners in the “War on Terror” were held neither as prisoners of war, protected by the Geneva Conventions, nor as criminal suspects to be put forward for trials, but as “enemy combatants” with no rights whatsoever.
Having deprived prisoners of any rights, it was then just a small step for the administration to decide that the torture ban was also irrelevant, and in the summer of 2002, senior officials commissioned lawyers in the Justice Department’s Office of Legal Counsel (which interprets the law as it applies to the Executive branch), to redefine torture so narrowly that the President would be able to claim, as he did repeatedly, that America “does not torture.”
The OLC’s conclusions were contained in an infamous memo — known as the “torture memo” (PDF) — that was issued on August 1, 2002, signed by Assistant Attorney General Jay S. Bybee, but largely written by John Yoo, a lawyer in the OLC. According to Yoo, for torture to be committed, the pain inflicted must be “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” or the infliction of mental pain which “result[s] in significant psychological harm of significant duration e.g. lasting for months or even years.”
This specific wording was chosen so that a number of techniques that were already being used on at least one “high-value detainee” — Abu Zubaydah, the gatekeeper of a military training camp in Afghanistan, who was regarded by the U.S. government as a significant al-Qaeda operative — could be defended, even though there was, in fact, no justification whatsoever for unilaterally rewriting Article 1 of the U.N. Convention, and ignoring Article 2 altogether.
The most notorious of these techniques is waterboarding, a form of controlled drowning, and it was a sign of the administration’s arrogance that senior officials felt justified in using the technique, even though it has a long and well-chronicled history as a form of torture. The Spanish Inquisition — more honestly than the Bush administration — referred to it as “tortura del agua,” and in January, when Eric Holder was confirmed as Attorney General, he stated unequivocally, “Waterboarding is torture,” and noted, as the New York Times described it, that “waterboarding had been used to torment prisoners during the Inquisition, by the Japanese in World War II and in Cambodia under the Khmer Rouge.” Perhaps most crucially, he also explained, “We prosecuted our own soldiers for using it in Vietnam.”
However, although the use of waterboarding has, in many ways, been the focus of media and public interest in the Bush administration’s use of torture, it is, in fact, just the most extreme example of an approach to torture that permeated every aspect of the Bush administration’s detention policies in the “War on Terror,” and was found not only in the “black sites” — the secret, CIA-run prisons for “high-value detainees” — but also in Afghanistan, Iraq, and Guantánamo.
Last December, after a two-and-a-half-year investigation into the treatment of prisoners in the “War on Terror,” the Senate Armed Services Committee produced a damning report (PDF), implicating senior officials, from President Bush down, for implementing systemic abuse. As the report’s authors explained,
The abuse of detainees in U.S. custody cannot simply be attributed to the actions of “a few bad apples” acting on their own. The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees. Those efforts damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority.
The Committee focused in particular on the reverse engineering of techniques “considered illegal under the Geneva Conventions,” and drawn largely from torture techniques used on captured U.S. personnel in the Korean War to extract false confessions, which are taught in the U.S. military’s SERE schools (Survival, Evasion, Resistance, Escape) to enable U.S. personnel to resist interrogation if captured. Despite being designed to produce false confessions, these techniques formed the basis for the Bush administration’s post-9/11 treatment of prisoners, and, in addition to waterboarding, included “stripping detainees of their clothing, placing them in stress positions, putting hoods over their heads, disrupting their sleep, treating them like animals, subjecting them to loud music and flashing lights, and exposing them to extreme temperatures.”
Opposition to the use of these techniques, from agencies including the FBI and the Naval Criminal Investigative Service, has been well chronicled over the years, as has a leaked November 2004 report by the International Committee of the Red Cross, which concluded that the procedures were “tantamount to torture.” Moreover, it is clear that the widespread implementation of these techniques — in Afghanistan, in Iraq, and in Guantánamo, where a former interrogator told the New York Times that they were applied to “about one in six” of the prisoners (in other words, at least a hundred men) — and the use of waterboarding and other “enhanced interrogation techniques” on a number of “high-value detainees” means that the senior officials who authorized their use should be prosecuted, according to the laws of the United States.
However, these are not the only techniques whose use amounts to torture, and on the International Day In Support of Victims of Torture, as I join calls for Attorney General Eric Holder to investigate the responsibility of senior officials in the Bush administration for implementing the use of torture and committing war crimes, I would like to remind readers that, although President Obama swept into office ordering an end to the use of torture, his wavering over the closure of Guantánamo has meant that another aspect of the Bush administration’s torture regime — the violent force-feeding of hunger strikers at Guantánamo — remains in place.
Hunger strikes have punctuated Guantánamo’s long and ignoble history, and, since January 2006, in response to a prison-wide hunger strike, the authorities have fastened long-term hunger strikers into restraint chairs twice a day, and have force-fed them through tubes inserted into the stomachs through the nose, even though, as Clive Stafford Smith, the lawyer for several dozen Guantánamo prisoners, has explained, “Medical ethics tell us that you cannot force-feed a mentally competent hunger striker, as he has the right to complain about his mistreatment, even unto death.”
And yet, even as this process began, the U.N. Commission on Human Rights concluded, in a detailed report about Guantánamo in February 2006 (PDF), following an 18-month investigation, that “[t]he excessive violence used in many cases during transportation ... and forced-feeding of detainees on hunger strike must be assessed as amounting to torture,” and it is clear that nothing has changed in the three years since the report was published. Instead, five long-term hunger strikers have died at the prison, and official reports that they committed suicide have persistently been challenged. In the most recent case -- that of Muhammad Salih, a Yemeni who died just three weeks ago — former prisoner Binyam Mohamed explained in the Miami Herald on June 11 that his death defied logic, and wondered whether he had been “killed by US personnel — intentionally or otherwise,” or whether he had died because of “some type of organ failure,” as a result of “the years of hunger strikes (since 2005) in protest against unjustified incarceration.”
Two weeks ago, I produced a report, “Guantánamo’s Hidden History: Shocking Statistics of Starvation” (PDF), for the British human rights group Cageprisoners about the effect of the hunger strikes at Guantánamo, in which, by analyzing a series of documents detailing the prisoners’ weights (which were released by the Pentagon in 2007), I was able to demonstrate the effects of arbitrary, and apparently endless imprisonment without charge or trial, which, in my opinion, is itself a form of torture. What I discovered shocked me, as the Pentagon’s own figures revealed that, at various times between between January 2002 and February 2007, 80 prisoners in Guantánamo (or one in ten of the total number of prisoners held) weighed less than 112 pounds, and 20 of those weighed less than 98 pounds.
If photos of the men were available, I have no doubt that there would be international uproar about conditions in Guantánamo, but in the absence of photos I’d like to conclude by quoting from a recent article by law professor Scott Horton, who wrote, in his column for Harper’s, that there was an aspect of Muhammad Salih’s death “that US officials are particularly anxious to avoid discussing: it appears to be tied to practices that the Pentagon defends as ‘force-feeding’ but other officials decry as ‘torture.’” He continued:
Pentagon officials seem extremely eager not to be associated with it or to be quoted defending it, particularly if they are health care professionals. There’s a good reason for that. The techniques do not comply with the international standards for actual force-feeding, established in the World Medical Association’s Malta Declaration of 1991. Instead they have a darker and more distressing progeny. From the use of restraint chairs down to the specific brand of commercial diet supplement used by the doctors, the force-feeding techniques now in use at Guantánamo replicate the methods used by the CIA at black sites under Bush. At the black sites, those methods were not part of any medical regime. Instead, they were a part of a carefully designed torture regime, the very same regime that Obama claims to have abolished in his first executive order.
Horton concluded by asking if this torture regime had just claimed another life. No answer has been forthcoming from the administration, but for anyone concerned with eradicating the use of torture by the United States, the truth about the force-feeding regime at Guantánamo should lead to renewed pressure on the White House to close Guantánamo as swiftly as possible, and to repatriate, or find new homes for the majority of the prisoners, who, like Muhammad Salih, were never the terrorists that the Bush administration apparently had in mind when it established Guantánamo in the first place.
Andy Worthington is a journalist and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (Pluto Press). Visit his blog here.