Guantanamo: Beyond the Law
a series of five articles by Tom Lasseter
in the McClatchy Newspapers, June 15–19, 2008, available at www.mcclatchydc.com/detainees
The Challenge: Hamdan v. Rumsfeld and the Fight over Presidential Power
by Jonathan Mahler
Farrar, Straus and Giroux, 334 pp., $26.00
Broken Laws, Broken Lives: Medical Evidence of Torture by US Personnel and Its Impact
a report by Physicians for Human Rights, with a preface by Major General Antonio M. Taguba
Physicians for Human Rights, 130 pp., available at brokenlives.info
Mohammed Jawad, an Afghan accused of throwing a grenade at a convoy of American soldiers in Kabul in late 2002, wounding two, was brought to the Guantánamo Bay prison camp in February 2003. He was then seventeen years old. In December 2003 he attempted suicide. The following May he was subjected to what Guantánamo officials called the “frequent flyer program.” Every three hours, day and night, he was shackled and moved to another cell—112 times over fourteen days.
We know about what was done to Mr. Jawad because the military lawyer assigned as his defense counsel, Major David J.R. Frakt (Air Force Reserve), sought and won from a military judge an order for his jailers to produce the records of his captivity. Major Frakt brought out the realities of Jawad’s treatment in his closing argument at a pre-trial hearing on June 19, 2008—an argument that was a remarkable display of legal and moral courage.
“Why was Mohammed Jawad tortured?” Major Frakt asked. “Why did military officials choose a teenage boy who had attempted suicide in his cell less than five months earlier to be the subject of this sadistic sleep deprivation experiment?” Officers at Guantánamo said they did not believe he had any valuable intelligence information, and he was not even questioned during the “frequent flyer program.” “The most likely scenario,” Major Frakt said, “is that they simply decided to torture Mr. Jawad for sport, to teach him a lesson, perhaps to make an example of him to others.”
aj_server = ‘http://rotator.adjuggler.com/servlet/ajrotator/’; aj_tagver = ’1.0′;
aj_zone = ‘nyrb’; aj_adspot = ’147551′; aj_page = ’0′; aj_dim =’147520′; aj_ch = ”; aj_ct = ”; aj_kw = ”;
aj_pv = true; aj_click = ”;
But Major Frakt did not stop with those who tormented Mohammed Jawad. He addressed President Bush’s order of February 7, 2002, that those detained at Guantánamo as alleged al-Qaeda or Taliban members and supporters were not to be given the protections of the Geneva Conventions. “February 7, 2002,” he said,
America lost a little of its greatness that day. We lost our position as the world’s leading defender of human rights, as the champion of justice and fairness and the rule of law….
Sadly, this military commission [which was holding the Jawad hearing] has no power to do anything to the enablers of torture such as John Yoo, Jay Bybee, Robert Delahunty, Alberto Gonzales…, David Addington, William Haynes, Vice President Cheney and Donald Rumsfeld….
Major Frakt’s reference to “the enablers” raised a fundamental question: How did the United States government get into the business of torturing prisoners? Sleep deprivation was by no means the only harsh technique used on prisoners at Guantánamo and elsewhere. Others included forcing prisoners into stress positions, exposing them to harsh lights and extreme hot and cold temperatures, sexual humiliation, nudity, and waterboarding, the “water cure” that inflicts partial suffocation. 
Since the abuse of prisoners at Abu Ghraib was exposed, in April 2004, the Bush administration has maintained that any mistreatment was the work of a few “bad apples.” No action has been taken against any higher-up, military or civilian. But a steady accumulation of disclosures, capped in June by a Senate committee report and hearing, has made it clear that abusive treatment of prisoners was a deliberate policy that came from the top—the Pentagon, the Justice Department, and the White House.
In July 2002 the office of the Pentagon’s general counsel made a survey of the techniques used in a Pentagon program designed to teach ways of resisting torture by enemy forces. (The program focused especially on techniques used by Chinese forces during the Korean War to induce American prisoners to confess falsely to such things as using germ warfare.) In August, Assistant Attorney General Jay S. Bybee, head of the Justice Department’s Office of Legal Counsel, issued a secret fifty-page memorandum concluding that the president had plenary power to order the torture of prisoners in the war on terror. It built on an earlier memo by John Yoo and Robert Delahunty, which had been approved by Alberto Gonzales, then President Bush’s White House counsel. Bybee’s legal conclusions were incorporated into a memorandum prepared for Secretary of Defense Rumsfeld.
In October 2002 a senior lawyer at the Central Intelligence Agency, Jonathan Fredman, went to Guantánamo and discussed harsh interrogation techniques with military officers. A military lawyer at Guantánamo, Lieutenant Colonel Diane Beaver, said that some previously forbidden methods such as sleep deprivation were being used on prisoners by the military at the Bagram Air Base detention center in Afghanistan but were kept hidden from the International Committee of the Red Cross when its representatives visited. “The ICRC is a serious concern,” she said. Fredman said that whether harsh treatment could be called torture was “a matter of perception.” He said, “If the detainee dies, you’re doing it wrong.”
In November 2002 the Defense Department’s general counsel, William J. Haynes II, recommended that Secretary Rumsfeld formally approve a number of aggressive interrogation methods at Guantánamo, including stress positions, the use of attack dogs, and sensory deprivation. Rumsfeld gave his approval in a secret order of December 2, 2002.
A number of military leaders warned against the harsh new techniques. Alberto Mora, general counsel of the Navy, told Haynes that they “could rise to the level of torture.” He said that if they were not curbed, he would write a memorandum saying that some of them violated “domestic and international legal norms.” On January 15, 2003, Rumsfeld withdrew his approval. In April he signed another memo listing approved methods, including sleep “adjustment,” and said others would be considered if requested.
ABC News reported in April of this year that President Bush’s top national security officials met in 2003 to discuss “enhanced” interrogation methods. Among those in the meetings were Vice President Cheney and his then counsel, now chief of staff, David Addington; Attorney General John Ashcroft; Condoleezza Rice, then Bush’s national security adviser; Rumsfeld and Haynes. Asked about the report, the President confirmed it. “As a matter of fact,” he told Martha Raddatz of ABC, “I told the country we did that. And I also told them it was legal. We had legal opinions that enabled us to do it.”
The Bush administration has made determined efforts to suppress all information about the mistreatment of its prisoners. Videotapes of at least two particularly horrendous interrogations were destroyed. In legal hearings, at Guantánamo and elsewhere, government lawyers have objected to disclosure of interrogation methods, arguing that it would alert al-Qaeda members to what they would face if captured. We still do not know what was done to Jose Padilla, an American held for years in solitary confinement as an alleged enemy combatant and now reportedly suffering long-term psychological damage. 
Nevertheless, any American who wanted to know about the cruelties his government has inflicted on prisoners and how they came about could have learned a good deal by this spring. A number of experts on the law and on the facts of torture have published commentary frequently in print and blogs, and I have benefited greatly from their writing. This past spring the scholar of international law Philippe Sands published his valuable book Torture Team: Rumsfeld’s Memo and the Betrayal of American Values  ; Vanity Fair printed a lengthy extract from it. Human Rights Watch and other human rights groups have published important reports on the abuse of prisoners.
Tom Lasseter and a team of reporters from the McClatchy Newspapers took a new and significant look at the situation in a series of five substantial articles in June. His stories disposed of some official myths about the detainees—for example, that as a group they were “the worst of the worst,” as Secretary Rumsfeld put it. Lasseter also gave some appalling accounts of the mistreatment of prisoners.
An Afghan named Nusrat Khan was in his seventies when American troops put him in an isolation cell in the prison at the Bagram Air Base in the spring of 2003. He had had at least two strokes. For almost four weeks, Khan said, he was kept blindfolded, with earphones on and his hands tied behind his back. When he was finally taken out of the cell, Lasseter wrote, Khan was “half-mad and couldn’t stand without help.” He said he was then transferred to Guantánamo on a stretcher.
One of the useful accomplishments of the Lasseter series was to remind readers that Guantánamo is not the only place where prisoners have been and continue to be held. In Afghanistan, for example, in addition to Bagram the US maintains a prison at the Kandahar Air Base. At both of these, Lasseter said, prisoners were routinely subjected to physical abuse from early in 2002. And there are the still-secret prisons run by the CIA.
At Bagram, Lasseter wrote, guards kicked, kneed, and punched prisoners with systematic brutality. Former guards as well as detainees told McClatchy reporters about what Lasseter called sadistic violence. According to them, the brutality reached a peak in December 2002, when two Afghans were hung from ceiling chains by their wrists and beaten to death by American soldiers.
Two soldiers were prosecuted for those killings. Specialist Willie Brand admitted that he hit one of the Afghan men thirty-seven times. He was sentenced to be reduced in rank to private. The other person prosecuted was Captain Christopher Beiring, who commanded an army reserve military police company. He was given a letter of reprimand.
The army lawyer who investigated Beiring, Lieutenant Colonel Thomas Berg, urged leniency because “the government failed to present any evidence of what are ‘approved tactics, techniques and procedures in detainee operations.’” In other words, members of the United States Army are no longer expected to know that beating a prisoner to death is against the rules.
Why were the guards so brutal? Anger at the terrorist attacks of September 11, 2001, Lasseter suggests—and a sense that their superiors in Washington wanted “the gloves off.” President Bush’s decision to eliminate the protection of the Geneva Conventions sent the message that there were no rules.
The McClatchy papers spent eight months investigating and working on the articles. (That is a reminder that bloggers, who we are sometimes told are the future of journalism, are not likely ever to have the time and resources to look into serious official wrongdoing as newspapers at their best do.) McClatchy reporters interviewed American, Afghan, and other officials —and sixty-six former detainees.
Of the sixty-six former prisoners, only twenty-two were originally detained by American forces. The rest were turned in by feuding members of other tribes, angry neighbors, or people who wanted to collect the large bounties offered by the United States for “terrorists.” Thomas White, a former secretary of the army, said it was obvious from the time the Guantánamo detention facility opened in early 2002 that at least a third of the prisoners did not belong there.
Another notable point made by the McClatchy articles was that the mistreatment of prisoners made some who had no previous connection with anti-American movements profoundly angry at the United States. It is hardly a surprising result to report, but the articles gave chapter and verse. They quoted a Pakistani intelligence report on men released from Guantánamo as saying that they had “extreme feelings of resentment and hatred against USA.”
Three times in the last four years the Supreme Court has rejected the Bush administration’s legal defenses of its program for detention of alleged “enemy combatants.” In 2004, in Rasul v. Bush, a 6–3 majority held that prisoners at Guantánamo could test the legality of their detention by petitioning in federal courts for writs of habeas corpus. In 2006, in Hamdan v. Rumsfeld, a 5–3 majority held that trials of prisoners before military commissions under rules laid down by the Bush administration were unlawful because limits on the rights of defendants violated the Uniform Code of Military Justice and the Geneva Conventions. This June, in Boumediene v. Bush, a 5–4 majority held that a congressional statute barring habeas corpus petitions by Guantánamo detainees violated the Constitution’s guarantee of the right to habeas corpus. 
Each of these decisions brought an outcry from the political right. Senator John McCain, a survivor of torture as a prisoner in North Vietnam who was once a critic of the Bush detention practices, called Boumediene “one of the worst decisions in the history of the country.” The dissenters on the Court predicted in strident language that the decision would gravely damage the country’s security.
Justice Antonin Scalia, who has a talent for alarmist dissents calculated to arouse political attacks on the Court’s decisions, used it tellingly in Boumediene. He predicted that the decision would have “devastating” consequences and said “at least thirty of those prisoners hitherto released from Guantánamo Bay have returned to the battlefield.” For the figure of thirty Justice Scalia cited a dissenting Senate Republican committee report, which in turn was based on a statement by a Pentagon spokesman in 2007: “Our reports indicate that at least thirty former Guantánamo detainees have taken part in anticoalition militant activities after leaving US detention.”
But Scalia’s claim of thirty returning to the battlefield has been substantially debunked by critics, and by the Pentagon itself, since it was first made. Professor Mark Denbeaux of Seton Hall University pointed out that the Defense Department itself named only fifteen of the supposed recidivists, and eight of those were said to have done nothing more than speak critically of US detention policies. In a document given to Congress two weeks before the Boumediene decision the Department of Defense abandoned the figure of thirty. After the decision a Boston lawyer, Sabin Willett, who represented two of the former detainees named as among the thirty, wrote in The Boston Globe that his two clients had done nothing more than (a) publish an Op-Ed piece in The New York Times and (b) give an interview. The Pentagon deemed these public comments “hostile.”
Senator McCain also waved the bloody shirt of the supposed thirty returned combatants. So did John Yoo, principal draftsman of the Justice Department opinions that the president had absolute power to torture prisoners. Professor Yoo (he now teaches law at the University of California, Berkeley) said the Supreme Court in Boumediene opened the way for aliens “captured fighting against the US” to challenge their detention. That gave a false—no doubt knowingly false—picture of the detainees at Guantánamo. Most were not “captured fighting.” Many, as we have seen, were turned over by jealous Afghan neighbors who wanted American bounties. Others were detained in far-off places such as Zambia. Indeed, the petitioners in Boumediene included six Algerians who lived in Bosnia and who were picked up by Bosnian police—at the request of US officials—and turned over to them.
Chief Justice John Roberts, in his Boumediene dissent, said the Court had struck down
the most generous set of proce dural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate.
But in this conflict, unlike previous ones, men taken prisoner had no recourse to the Geneva Convention provision requiring a fair hearing to discover whether they were in fact enemy combatants. The Bush administration reluctantly changed the procedures only when forced to by events: the Abu Ghraib scandal and then successive Supreme Court decisions.
An al-Jazeera cameraman, Sami al-Haj, was on his way to Afghanistan in 2001 when he was stopped by a Pakistani official and turned over to the United States. He was held for six years at Guantánamo—and questioned not about al-Qaeda but about al-Jazeera. (He was released in 2008.) His case was one among many where there was never any showing that a detainee was an “enemy combatant.”
Opening the federal courts to habeas corpus applications from the detainees hardly promises them a swift ticket to freedom. But it marks at least a first step toward accountability—a forum where the treatment of a detainee and the asserted reasons for his imprisonment can be examined. As George Will wrote in a column blasting Senator McCain for the ignorance of his comments on habeas corpus, “the Supreme Court’s ruling only begins marking a boundary against government’s otherwise boundless power to detain people indefinitely.”
A striking example of the importance of having courts check official decisions that someone is an “enemy combatant” is the case of Huzaifa Parhat, one of a number of Uighur Muslims from China who are in Guantánamo. Parhat, who the US military claimed was at a Uighur training camp in Afghanistan in 2001, was captured in Pakistan in the fall of 2001. A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit found in June that there was no persuasive evidence to support the government’s labeling of him as an enemy combatant. The panel included the court’s chief judge, David Sentelle, one of the most conservative federal judges in the country. Its opinion ridiculed the government argument, comparing it to the statement of a Lewis Carroll character: “I have said it thrice: What I tell you three times is true.”
Unlike John Yoo and William Haynes, most American lawyers who have been involved in the issues of torture and boundless detention have defended American ideals of justice. That has been strikingly so in the case of lawyers in the military services, the judge advocates general. Major Frakt, whose powerful argument on behalf of Mohammed Jawad I noted above, is one example among many. Large numbers of private lawyers have volunteered their time and struggled against official obstacles to represent prisoners.
The work of lawyers for a detainee is brilliantly explored in Jonathan Mahler’s The Challenge: Hamdan v. Rumsfeld and the Fight over Presidential Power. But it is much more than a book about law and lawyers. It tells the story of a captive who gave his name to a great constitutional decision; and it describes the personal struggles of his lawyers, their courage, and their faults. The result is a work of rare drama.
Salim Hamdan, who gave his name to a leading constitutional decision in the Supreme Court, was a poor Yemeni who was recruited for jihad and became Osama bin Laden’s driver in Afghanistan. He was captured there in late 2001 by Northern Alliance forces and turned over to the United States. In May 2002 he was taken to the prison camp in Guantánamo.
(On August 6, after the first military commission trial at Guantánamo, Hamdan was convicted of providing material support for terrorism, but not of the more serious charge of conspiracy. He was sentenced to five and a half years in prison, far less than the life sentence military prosecutors had long sought. Moreover, the court gave credit for the sixty-one months Hamdan had been in detention since charged, meaning that his sentence will be completed by the end of this year. His fate after that is uncertain, because the Bush administration claims it can keep detainees in Guantánamo—whether convicted or acquitted in a military trial, or not tried at all—until the end of the “war on terror.”)
One of the remarkable facts exposed in this book is that Hamdan was first questioned in Guantánamo by an FBI agent who carefully built up a relationship with him and, in time, got detailed statements from him about al-Qaeda and some of its leaders. The agent had ample evidence for Hamdan to be prosecuted in a federal court; he thought he could persuade Hamdan to testify against more important al-Qaeda figures in return for a reduced sentence. But to his dismay Hamdan was designated for trial before a military commission; the FBI was immediately cut off from him and lost a potentially important witness.
The judge advocate general assigned by military authorities to represent Hamdan in the commission proceedings was a navy lieutenant com- mander, Charles Swift. After law school he returned to the navy and spent much of his time as a daring defense lawyer in the JAG corps. In the unfolding of the Hamdan case, Swift had one crucial role: dealing with the client. He visited Hamdan in Guantánamo, trying to keep his spirits up during years of frustratingly little progress and punishing treatment in the prison. (Hamdan went on hunger strike and was force-fed for a long period.) Swift also talked to the press, freely and volubly, about the unfairness of the commission process.
Swift’s civilian colleague in the case was a professor at the Georgetown Law Center, Neal Katyal. His role was to mount a constitutional challenge to the terms of the commissions set by President Bush. It was a formidable task, beginning with the need to establish the detainee’s right to sue at all and to invoke the Geneva Conventions—both totally resisted by the administration’s lawyers.
Katyal was compulsive in his devotion to the different phases of the case. Mahler describes him writing twenty-six drafts of a brief and trying out an oral argument in fifteen moot court efforts in five cities. He brought in lawyers from a large firm as co-counsel but was “too arrogant” to listen to their views, Mahler says. He worked relentlessly, finishing one brief at 5:45 the morning it was due. Through it all he shared child-care responsibilities with his wife, and he made a trip to India to help bury his father. His relationship with Charlie Swift frayed almost to the breaking point.
As we read this book, we know what the Supreme Court is going to decide in the end; but I found myself so caught up in the drama of the lawyers’ struggle that I waited, with their anxiety, to see whether the Court would hear the case, and then what it would do. At the denouement Katyal walked out of the Supreme Court and told reporters:
What happened today, a man from Yemen with a fourth-grade education, accused of conspiring with one of the most horrendous individuals on the planet, being able to sue the most powerful man in the world, the president of the United States, and have his case heard— that is something that is fundamentally great about America.
To which Charlie Swift added: “Our values are what won here today, our values for the rule of law….”
Swift paid a high price in the navy for his successful work on behalf of Hamdan. He was passed over for promotion and resigned his commission. He became a visiting professor at Emory Law School—and, as a civilian lawyer, represented Hamdan in the military commission proceedings against him that finally got underway in 2008. But he was hardly alone in being punished for defending American values. Major General Anthony Taguba, who was appointed to investigate the torture at Abu Ghraib and found that there had been “wanton criminal abuse” of detainees, was forced into retirement.
General Taguba wrote the preface to Broken Laws, Broken Lives: Medical Evidence of Torture by US Personnel and Its Impact, a report issued in June by Physicians for Human Rights on the lingering effects on detainees of what was done to them, based on medical examinations of some of them. General Taguba said that “the Commander-in-Chief and those under him authorized a systematic regime of torture.” He added:
After years of disclosures by government investigations, media accounts, and reports from human rights organizations, there is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.
To date the “enablers of torture,” as Major Frakt called them, are doing fine. President Bush, Vice President Cheney, and David Addington remain in office. Jay Bybee, who issued the legal opinion that said the president had unlimited power to order the use of torture, was nominated and confirmed as a judge of the United States Court of Appeals for the Ninth Circuit before his torture role became known. John Yoo is in his professorship at the Berkeley law school; the dean, Christopher Edley, said in April that tenure protected him there and that his clients—President Bush et al.—were “the deciders.” Yoo is also regarded by television programs and by the opinion pages of newspapers, including The Wall Street Journal and The New York Times, as a legitimate voice on issues of presidential power, and he appears frequently.
Yoo and Addington appeared in June before a House Judiciary subcommittee; they ducked questions about their responsibility. When Addington was asked whether it would be legal to torture a detainee’s child, he replied: “I’m not here to render legal advice to your committee.” William Haynes, the former Defense Department general counsel, appeared before a Senate committee and repeatedly said, in answer to questions, that he could not remember. A Washington Post column on his testimony was headlined “Abu Ghraib? Doesn’t Ring a Bell.”
Torture by officials is prohibited by US criminal law as well as by the international Convention Against Torture and the Geneva Conventions. According to the new book by Jane Mayer, the International Committee of the Red Cross concluded in a report last year that interrogation methods used by the CIA on a high-level prisoner “categorically” constituted torture. Her book, The Dark Side: The Inside Story of How The War on Terror Turned into a War on American Ideals,  says the ICRC report was sent to the CIA, the detaining authority, which “shared it with the President and the Secretary of State.” Mayer writes that the report “warned that the abuse constituted war crimes, placing the highest officials in the US government in jeopardy of being prosecuted.”
There will be no American prosecution of the enablers as long as George W. Bush is president. But it may not be safe for the prominent among them to travel privately abroad. Someone may try to assert the universal jurisdiction over gross violators of human rights that was upheld by the House of Lords when General Pinochet was served in Britain with a Spanish warrant.
Conservative commentators have already warned against any future US prosecution, arguing that—reprehensible as the treatment of some detainees was—those responsible did not have criminal intent. The argument is unpersuasive on the facts, because Secretary Rumsfeld and others were warned by senior Pentagon civilian and military lawyers, including the navy general counsel, Alberto Mora, that their policies would violate the law. And it is unpersuasive on the law, because a mistaken view of the law is not a defense under the principles established at the Nuremberg trials. The Nuremberg precedents also dispose of Dean Edley’s argument that lawyers cannot be prosecuted for advising officials that they can commit what are in fact crimes. German lawyers were convicted at Nuremberg as enablers, in their legal advice, of Nazi crimes.  President Bush said, “We had legal opinions that enabled us to do it.”
Prosecutions are not a likely course for a new US administration. But there are steps that should be taken to confront the horrors our government has perpetrated. At a minimum we must lift the cloak of secrecy from what was done and from some still-classified legal opinions that purported to legitimize these acts.
Somehow this country has to reassert its historic repugnance at the use of torture. And that may not be easy. A recent poll showed that Americans’ support for the torture of alleged terror- ists has risen from 36 percent of those asked in 2006 to 44 percent this year. We were shocked by the Abu Ghraib photographs. Since then a good many of us have become desensitized to the use of torture.
President Bush and his top officials have evidently succeeded in persuading many with their contention that “enhanced interrogation techniques,” as they call torture, produce valuable information. The evidence asserted for this contention is weak; Senator Jay Rockefeller, drawing on his experience as chairman of the Senate Intelligence Committee, has said:
I have heard nothing to suggest that information obtained from enhanced interrogation techniques has prevented an immi nent terrorist attack. And I have heard nothing that makes me think the information obtained from these techniques could not have been obtained through traditional interrogation methods used by military and law enforcement interrogators.
But in any event the cost of the policy to America’s reputation—and its national security—has been enormous. It has aroused much of the Muslim world to hatred of the United States. And it has sapped the belief of many Americans in the righteousness of their country.
In the end the cure, if there is to be one, will have to come from leaders who reassert the primary place of law in the American character: from a president who does not seek unrestrained power, from an attorney general and other officials who respect the law. It is not too late to return to a government of laws, not men. n