How Two Administrations and Both Parties Made Illegality the American Way of Life
Cross-posted with TomDispatch.com
After a decade of fiery public debate and bare-knuckle partisan brawling, the United States has stumbled toward an ad hoc bipartisan compromise over the issue of torture that rests on two unsustainable policies: impunity at home and rendition abroad.
President Obama has closed the CIA’s “black sites,” its secret prisons where American agents once dirtied their hands with waterboarding and wall slamming. But via rendition -- the sending of terrorist suspects to the prisons of countries that torture -- and related policies, his administration has outsourced human rights abuse to Afghanistan, Somalia, and elsewhere. In this way, he has avoided the political stigma of torture, while tacitly tolerating such abuses and harvesting whatever intelligence can be gained from them.
This “resolution” of the torture issue may meet the needs of this country’s deeply divided politics. It cannot, however, long satisfy an international community determined to prosecute human rights abuses through universal jurisdiction. It also runs the long-term risk of another sordid torture scandal that will further damage U.S. standing with allies worldwide.
Perfecting a New Form of Torture
The modern American urge to use torture did not, of course, begin on September 12, 2001. It has roots that reach back to the beginning of the Cold War and a human rights policy riven with contradictions. Publicly, Washington opposed torture and led the world in drafting the United Nation’s Universal Declaration of Human Rights in 1948 and the Geneva Conventions in 1949. Simultaneously and secretly, however, the Central Intelligence Agency began developing ingenious new torture techniques in contravention of these same international conventions.
From 1950 to 1962, the CIA led a secret research effort to crack the code of human consciousness, a veritable Manhattan project of the mind with two findings foundational to a new form of psychological torture. In the early 1950s, while collaborating with the CIA, famed Canadian psychologist Dr. Donald Hebb discovered that, using goggles, gloves, and earmuffs, he could induce a state akin to psychosis among student volunteers by depriving them of sensory stimulation. Simultaneously, two eminent physicians at Cornell University Medical Center, also working with the Agency, found that the most devastating torture technique used by the KGB, the Soviet secret police, involved simply forcing victims to stand for days at a time, while legs swelled painfully and hallucinations began.
In 1963, after a decade of mind-control research, the CIA codified these findings in a succinct, secret instructional handbook, the KUBARK Counterintelligence Interrogation manual. It became the basis for a new method of psychological torture disseminated worldwide and within the U.S. intelligence community. Avoiding direct involvement in torture, the CIA instead trained allied agencies to do its dirty work in prisons throughout the Third World, like South Vietnam’s notorious “tiger cages.”
The Korean War added a defensive dimension to this mind-control research. After harsh North Korean psychological torture forced American POWs to accuse their own country of war crimes, President Dwight Eisenhower ordered that any serviceman subject to capture be given resistance training, which the Air Force soon dubbed with the acronym SERE (for survival, evasion, resistance, escape).
Once the Cold War ended in 1990, Washington resumed its advocacy of human rights, ratifying the U.N. Convention Against Torture in 1994, which banned the infliction of “severe” psychological and physical pain. The CIA ended its torture training in the Third World, and the Defense Department recalled Latin American counterinsurgency manuals that contained instructions for using harsh interrogation techniques. On the surface, then, Washington had resolved the tension between its anti-torture principles and its torture practices.
But when President Bill Clinton sent the U.N. Convention to Congress for ratification in 1994, he included language (drafted six years earlier by the Reagan administration) that contained diplomatic “reservations.” In effect, these addenda accepted the banning of physical abuse, but exempted psychological torture.
A year later, when the Clinton administration launched its covert campaign against al-Qaeda, the CIA avoided direct involvement in human rights violations by sending 70 terror suspects to allied nations notorious for physical torture. This practice, called “extraordinary rendition,” had supposedly been banned by the U.N. convention and so a new contradiction between Washington’s human rights principles and its practices was buried like a political land mine ready to detonate with phenomenal force, just 10 years later, in the Abu Ghraib scandal.
Right after his first public address to a shaken nation on September 11, 2001, President George W. Bush gave his White House staff expansive secret orders for the use of harsh interrogation, adding, “I don’t care what the international lawyers say, we are going to kick some ass.”
Soon after, the CIA began opening “black sites” that would in the coming years stretch from Thailand to Poland. It also leased a fleet of executive jets for the rendition of detained terrorist suspects to allied nations, and revived psychological tortures abandoned since the end of the Cold War. Indeed, the agency hired former Air Force psychologists to reverse engineer SERE training techniques, flipping them from defense to offense and thereby creating the psychological tortures that would henceforth travel far under the euphemistic label “enhanced interrogation techniques.”
In a parallel move in late 2002, Secretary of Defense Donald Rumsfeld appointed General Geoffrey Miller to head the new prison at Guantanamo, Cuba, and gave him broad authority to develop a total three-phase attack on the sensory receptors, cultural identity, and individual psyches of his new prisoners. After General Miller visited Abu Ghraib prison in September 2003, the U.S. commander for Iraq issued orders for the use of psychological torture in U.S. prisons in that country, including sensory disorientation, self-inflicted pain, and a recent innovation, cultural humiliation through exposure to dogs (which American believed would be psychologically devastating for Arabs). It is no accident that Private Lynndie England, a military guard at Abu Ghraib prison, was famously photographed leading a naked Iraqi detainee leashed like a dog.
Just two months after CBS News broadcast those notorious photos from Abu Ghraib in April 2004, 35% of Americans polled still felt torture was acceptable. Why were so many tolerant of torture?
One partial explanation would be that, in the years after 9/11, the mass media filled screens large and small across America with enticing images of abuse. Amid this torrent of torture simulations, two media icons served to normalize abuse for many Americans -- the fantasy of the “ticking time bomb scenario” and the fictional hero of the Fox Television show “24,” counterterror agent Jack Bauer.
In the months after 9/11, Harvard professor Alan Dershowitz launched a multimedia campaign arguing that torture would be necessary in the event U.S. intelligence agents discovered that a terrorist had planted a ticking nuclear bomb in New York’s Times Square. Although this scenario was a fantasy whose sole foundation was an obscure academic philosophy article published back in 1973, such ticking bombs soon enough became a media trope and a persuasive reality for many Americans -- particularly thanks to “24,” every segment of which began with an oversized clock ticking menacingly.
In 67 torture scenes during its first five seasons, the show portrayed agent Jack Bauer’s recourse to abuse as timely, effective, and often seductive. By its last broadcast in May 2010, the simple invocation of agent Bauer’s name had become a persuasive argument for torture used by everyone from Supreme Court Justice Antonin Scalia to ex-President Bill Clinton.
While campaigning for his wife Hillary in the 2008 Democratic presidential primary, Clinton typically cited “24” as a justification for allowing CIA agents, acting outside the law, to torture in extreme emergencies. “When Bauer goes out there on his own and is prepared to live with the consequences,” Clinton told Meet the Press, “it always seems to work better.”
Impunity in America
Such a normalization of “enhanced interrogation techniques” created public support for an impunity achieved by immunizing all those culpable of crimes of torture. During President Obama’s first two years in office, former Vice President Dick Cheney and his daughter Liz made dozens of television appearances accusing his administration of weakening America’s security by investigating CIA interrogators who had used such techniques under Bush.
Ironically, Obama’s assassination of Osama bin Laden in May 2011 provided an opening for neoconservatives to move the nation toward impunity. Forming an a cappella media chorus, former Bush administration officials appeared on television to claim, without any factual basis, that torture had somehow led the Navy SEALs to Bin Laden. Within weeks, Attorney General Eric Holder announced an end to any investigation of harsh CIA interrogations and to the possibility of bringing any of the CIA torturers to court. (Consider it striking, then, that the only “torture” case brought to court by the administration involved a former CIA agent, John Kiriakou, who had leaked the names of some torturers.)
Starting on the 10th anniversary of 9/11, the country took the next step toward full impunity via a radical rewriting of the past. In a memoir published on August 30, 2011, Dick Cheney claimed the CIA’s use of “enhanced interrogation techniques” on an al-Qaeda leader named Abu Zubaydah had turned this hardened terrorist into a “fount of information” and saved “thousands of lives.”
Just two weeks later, on September 12, 2011, former FBI counterterror agent Ali Soufan released his own memoirs, stating that he was the one who started the interrogation of Abu Zubaydah back in 2002, using empathetic, non-torture techniques that quickly gained “important actionable intelligence” about "the role of KSM [Khalid Sheikh Mohammed] as the mastermind of the 9/11 attacks."
Angered by the FBI's success, CIA director George Tenet dispatched his own interrogators from Washington led by Dr. James Mitchell, the former SERE psychologist who had developed the agency’s harsh “enhanced techniques.” As the CIA team moved up the “force continuum” from “low-level sleep deprivation” to nudity, noise barrage, and the use of a claustrophobic confinement box, Dr. Mitchell’s harsh methods got "no information."
By contrast, at each step in this escalating abuse, Ali Soufan was brought back for more quiet questioning in Arabic that coaxed out all the valuable intelligence Zubaydah had to offer. The results of this ad hoc scientific test were blindingly clear: FBI empathy was consistently effective, while CIA coercion proved counterproductive.
But this fundamental yet fragile truth has been obscured by CIA censorship and neoconservative casuistry. Cheney’s secondhand account completely omitted the FBI presence. Moreover, the CIA demanded 181 pages of excisions from Ali Soufan’s memoirs that reduced his chapters about this interrogation experience to a maze of blackened lines no regular reader can understand.
The agency’s attempt to rewrite the past has continued into the present. Just last April, Jose Rodriguez, former chief of CIA Clandestine Services, published his uncensored memoirs under the provocative title Hard Measures: How Aggressive C.I.A. Actions after 9/11 Saved American Lives. In a promotional television interview, he called FBI claims of success with empathetic methods “bullshit.”
With the past largely rewritten to assure Americans that the CIA’s “enhanced interrogation” had worked, the perpetrators of torture were home free and the process of impunity and immunity established for future use.
Rendition Under Obama
Apart from these Republican pressures, President Obama’s own aggressive views on national security have contributed to an undeniable continuity with many of his predecessor’s most controversial policies. Not only has he preserved the controversial military commissions at Guantanamo and fought the courts to block civil suits against torture perpetrators, he has, above all, authorized continuing CIA rendition flights.
During the 2008 presidential campaign, Obama went beyond any other candidate in offering unqualified opposition to both direct and indirect U.S. involvement in torture. "We have to be clear and unequivocal. We do not torture, period," he said, adding, "That will be my position as president. That includes, by the way, renditions.”
Only days after his January 2009 inauguration, Obama issued a dramatic executive order ending the CIA’s coercive techniques, but it turned out to include a large loophole that preserved the agency’s role in extraordinary renditions. Amid his order’s ringing rhetoric about compliance with the Geneva conventions and assuring “humane treatment of individuals in United States custody,” the president issued a clear and unequivocal order that “the CIA shall close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future.” But when the CIA’s counsel objected that this blanket prohibition would also “take us out of the rendition business,” Obama added a footnote with a small but significant qualification: “The terms ‘detention facilities’ and ‘detention facility’ in... this order do not refer to facilities used only to hold people on a short-term, transitory basis.” Through the slippery legalese of this definition, Obama thus allowed the CIA continue its rendition flights of terror suspects to allied nations for possible torture.
Moreover, in February 2009, Obama’s incoming CIA director Leon Panetta announced that the agency would indeed continue the practice “in renditions where we returned an individual to the jurisdiction of another country, and they exercised their rights… to prosecute him under their laws. I think,” he added, ignoring the U.N. anti-torture convention’s strict conditions for this practice, “that is an appropriate use of rendition.”
As the CIA expanded covert operations inside Somalia under Obama, its renditions of terror suspects from neighboring East African nations continued just as they had under Bush. In July 2009, for example, Kenyan police snatched an al-Qaeda suspect, Ahmed Abdullahi Hassan, from a Nairobi slum and delivered him to that city’s airport for a CIA flight to Mogadishu. There he joined dozens of prisoners grabbed off the streets of Kenya inside “The Hole” -- a filthy underground prison buried in the windowless basement of Somalia’s National Security Agency. While Somali guards (paid for with U.S. funds) ran the prison, CIA operatives, reported the Nation’s Jeremy Scahill, have open access for extended interrogation.
Obama also allowed the continuation of a policy adopted after the Abu Ghraib scandal: outsourcing incarceration to local allies in Afghanistan and Iraq while ignoring human rights abuses there. Although the U.S. military received 1,365 reports about the torture of detainees by Iraqi forces between May 2004 and December 2009, a period that included Obama’s first full year in office, American officers refused to take action, even though the abuses reported were often extreme.
Simultaneously, Washington’s Afghan allies increasingly turned to torture after the Abu Ghraib scandal prompted U.S. officials to transfer most interrogation to local authorities. After interviewing 324 detainees held by Afghanistan’s National Directorate of Security (NDS) in 2011, the U.N. found that “torture is practiced systematically in a number of NDS detention facilities throughout Afghanistan.” At the Directorate’s prison in Kandahar one interrogator told a detainee before starting to torture him, “You should confess what you have done in the past as Taliban; even stones confess here.”
Although such reports prompted both British and Canadian forces to curtail prisoner transfers, the U.S. military continues to turn over detainees to Afghan authorities -- a policy that, commented the New York Times, “raises serious questions about potential complicity of American officials.”
How to Unclog the System of Justice One Drone at a Time
After a decade of intense public debate over torture, in the last two years the United States has arrived at a questionable default political compromise: impunity at home, rendition abroad.
This resolution does not bode well for future U.S. leadership of an international community determined to end the scourge of torture. Italy’s prosecution of two-dozen CIA agents for rendition in 2009, Poland’s recent indictment of its former security chief for facilitating a CIA black site, and Britain’s ongoing criminal investigation of intelligence officials who collaborated with alleged torture at Guantanamo are harbingers of continuing pressures on the U.S. to comply with international standards for human rights.
Meanwhile, unchecked by any domestic or international sanction, Washington has slid down torture’s slippery slope to find, just as the French did in Algeria during the 1950s, that at its bottom lies the moral abyss of extrajudicial execution. The systematic French torture of thousands during the Battle of Algiers in 1957 also generated over 3,000 “summary executions” to insure, as one French general put it, that “the machine of justice” not be “clogged with cases.”
In an eerie parallel, Washington has reacted to the torture scandals of the Bush era by generally forgoing arrests and opting for no-fuss aerial assassinations. From 2005 to 2012, U.S. drone killings inside Pakistan rose from zero to a total of 2,400 (and still going up) -- a figure disturbingly close to those 3,000 French assassinations in Algeria. In addition, it has now been revealed that the president himself regularly orders specific assassinations by drone in Pakistan, Yemen, and Somalia off a secret “kill list.” Simultaneously, his administration has taken just one terror suspect into U.S. custody and has not added any new prisoners to Guantanamo, thereby avoiding any more clogging of the machinery of American justice.
Absent any searching inquiry or binding reforms, assassination is now the everyday American way of war while extraordinary renditions remain a tool of state. Make no mistake: some future torture scandal is sure to arise from another iconic dungeon in the dismal, ever-lengthening historical procession leading from the "tiger cages" of South Vietnam to "the salt pit" in Afghanistan and "The Hole" in Somalia. Next time, the world might not be so forgiving. Next time, with those images from Abu Ghraib prison etched in human memory, the damage to America’s moral authority as world leader could prove even more deep and lasting.
Alfred W. McCoy is the J.R.W. Smail Professor of History at the University of Wisconsin-Madison. A TomDispatch regular, he is the author of A Question of Torture: CIA Interrogation, From the Cold War to the War on Terror, which provided documentation for the Oscar-winning documentary feature film Taxi to the Darkside. His recent book, Torture and Impunity: The U.S. Doctrine of Coercive Interrogation (University of Wisconsin, 2012) explores the American experience of torture during the past decade.
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