Justice and the Enemy Read online

  The abuses that occurred in the early days of Guantanamo have been well and frequently documented. It became clear that in the haste to make sense out of the battlefields in Afghanistan, a significant proportion of the men captured and brought to Guantanamo were innocent. They were not all “the worst of the worst,” as Donald Rumsfeld had declared. On the other hand, many of them were indeed dangerous men bent on inflicting great harm on America and the West.

  Geneva required that “a competent tribunal” assess whether individual combatants should receive P.O.W. status, but this was denied on the grounds that the president had made a “group status determination” that the detainees were all enemy fighters. As Jack Goldsmith wrote later, “Whatever its legal merits, this was an inadequate response to concerns that particular individuals were not enemy fighters but instead were innocent farmers scooped up in Afghanistan.” 2 It was not easy to sort the farmers from the fighters. It is to be condemned that some were interrogated harshly. Some blameless men were detained too long. But genuine terrorists were also released and many of them went on to do further harm.

  The detainees were from forty different countries and some of them turned out to be Muslim citizens of America’s European allies, amongst whom the view developed that the U.S. was overreacting to 9/11, that the War on Terror was an exaggerated exercise, and that many laws were being broken in its name. There was immediate pressure from many countries for the return home of their nationals.

  Jack Goldsmith pointed out that the administration had legal basis for all that it did but it also chose “to push its legal discretion to its limit, and rejected any binding legal constraints on detainee treatment under the laws of war. President Bush settled instead on treating the detainees ‘humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.’” This formulation sounded good. But it was very vague. 3

  It was certainly not good enough for the administration’s critics. Amnesty International called Gitmo “the gulag of our times.” The senior Democratic senator, Dick Durbin, compared U.S. behavior there to that of “Nazis, Soviets in their gulags, or some mad regime—Pol Pot or others—that had no concern for human beings.” Tom Bingham, one of the greatest legal minds in Britain, a law lord and former chief justice, wrote a well-regarded book, The Rule of Law, which included stinging indictments of U.S. policies in the War on Terror. Of Guantanamo, he wrote, “the Pentagon is said to have conceded that the United States has detained more than 80,000 people, of whom nearly 800 were held for a time at Guantanamo Bay. Some of these were as young as thirteen, and there were very few terrorists among them.” 4

  The views of a legal scholar such as the late Lord Bingham should not be taken lightly. On the other hand, the United States was having to grapple with an area of law in which new kinds of warfare were not adequately addressed. As the House of Commons Foreign Affairs Committee in London concluded after its visit to Guantanamo in 2006, “the Geneva Conventions are failing to provide necessary protection because they lack clarity and are out of date.”

  In an effort to counteract the vociferous complaints, and to be seen to abide by its own values, the United States invested millions of dollars in Guantanamo’s facilities and over time transformed it into one of the best equipped and managed detention centers in the world. Food was prepared according to halal dietary requirements. All detainees were given Korans; the Muslim call to prayer sounded five times each day and arrows across the camp pointed the way to Mecca. The detainees could play games, learn languages, and take books (in at least sixteen languages) from the library. According to the Guantanamo librarian, Harry Potter books were said to be especially popular. The detainees had health care equal to that given to the U.S. troops. 5

  But whatever the U.S. did to ameliorate the camp, the early perceptions of Guantanamo as a cruel and illegal hellhole proved indelible. Newsweek magazine ran a story in May 2005 alleging that U.S. interrogators at Gitmo had flushed a Koran down a lavatory in order to upset prisoners. This was untrue, but it sounded like a reprise of the horrors of ill-disciplined abuse at Abu Ghraib prison in Baghdad. The article provoked riots across Muslim countries; in Afghanistan seventeen people died in the violence.

  Predictably, Newsweek’s and similar horror stories garnered far more attention than the testimony of an expert for the Organization for Security and Cooperation in Europe, who stated, after a visit, that Guantanamo inmates were treated much better than any in Belgium’s jails. Alain Grignard, the deputy head of Brussels’ federal police anti-terrorism unit, said, “it is a model prison.... I know of no Belgian prison where each inmate receives its Muslim kit.” He thought that the inmates’ ability to practice their religion, their food, clothes, and medical care were all better than in Belgium. He agreed that detention without the expectation of release was “mental torture” but Guantanamo itself improved every time he visited. 6

  The Bush administration made serious efforts to send home all the detainees who were deemed safe (and who had safe homes to go to), to clarify the legal rules applicable to detention and to hold substantive discussions with its allies on the complicated legal issues involved. The Pentagon tried to make the prison transparent, organizing visits by over a thousand journalists and scores of members of Congress, as well as by European parliamentary groups, human rights organizations, and lawyers visiting their detainee clients.

  Some detainees remained obdurate. Michael Mukasey wrote that on a visit there in 2008, when he was U.S. attorney general, “I saw the plastic face shields that guards must wear when they approach or enter cells to protect them from the cocktails of urine, feces, and semen that are regularly hurled at them along with verbal and physical abuse. I saw the collection of weapons fashioned by detainees to attack guards, as well as the rigorous standards imposed on the guards in responding to these provocations. Any lapse of behavior or demeanor by a military guard results in swift discipline or transfer.” 7

  From 2002 to the present day, Guantanamo remained a symbol to America’s enemies and to many of its friends, as well as to human rights groups in the United States and around the world, of America’s disregard for the rule of law. 8 The much bigger and more poorly appointed U.S. detention center at Bagram in Afghanistan never excited equal interest, though conditions for detainees there were worse and it offered less access to legal representation than the base on Cuba.

  Guantanamo was not the only problem that the Bush administration’s policies created. Similar, near-universal opprobrium was heaped upon the administration when the president acknowledged in 2006 that, after 9/11, the C.I.A. had set up secret prisons in allied countries around the world for the detention and interrogation of Al Qaeda suspects. Prisoners were also covertly flown or, in the sinister jargon, “rendered” to other countries where their humane treatment could not be guaranteed. Worse still, the U.S. employed what were called, in an awful euphemism, “enhanced interrogation techniques,” on selected Al Qaeda prisoners. When revealed, many lawyers and commentators immediately denounced these techniques as torture, a description vigorously resisted by the administration.

  It is outside the scope of this book to map in detail the difficult frontier between illegal torture and legitimate interrogation. Michael Ignatieff, Canadian academic and liberal politician, has pointed out, “Torture is probably the hardest case in the ethics of the lesser evil. A clear prohibition (against torture) erected in the name of human dignity comes up against a utilitarian case also grounded in a dignity claim, namely, the protection of human lives.” 9

  The U.S. is a signatory to the U.N. Convention Against Torture, which bans not only torture but also “other acts of cruel, inhuman, or degrading treatment or punishment which do not amount to torture.” And the 1996 War Crimes Act made a crime of any grave breach of the Geneva Conventions, including Common Article 3, which prohibits outrages upon personal dignity, including humiliating and degrading treatment.

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lready stressed the U.S. government’s desperate search for intelligence on Al Qaeda’s structures and plans after 9/11. The White House believed that the threat of another, far more serious attack, was so great and the United States’ knowledge of Al Qaeda’s operations was so slight, that the rapid and effective interrogation of captured enemies was crucial. Thus it was that the Bush administration decided that if significant captured combatants, who were thought to have vital information, refused to cooperate with their interrogators, they could be subjected to the so-called “enhanced interrogation techniques.”

  One advocate of this form of interrogation was Douglas Feith, an undersecretary of defense for policy in George W. Bush’s first administration. He argued that in this age, human beings themselves are potentially devastating weapons—as were the hijackers on 9/11. “The new situation means that weapons are now in people’s heads—so getting it out is crucial.” 10 Failing to make terror suspects talk could fatally compromise national security. John Lloyd of the Financial Times pointed out that although torture is hideous, it can work and is widely practiced. “Torture—iron-ically, at a time when human rights, democracy, the rule of law and the protection of women’s rights are being globalized—now suggests itself as a response to the most urgent problems of security.” 11

  The “enhanced interrogation techniques” approved by President Bush were carried out by C.I.A. officers; they required numerous levels of authorization prior to use and were put into effect under carefully controlled circumstances including medical supervision. Some of them were undoubtedly painful, but none of them was intended to inflict intense pain—like, say, the pulling out of fingernails—or to cause lasting physical damage. They included sleep deprivation, walling (in which the prisoner is slammed against a false wall that is flexible so as not to cause physical harm), slapping, forced nudity, and prolonged wall standing.

  Most contentious of all was waterboarding, which has been variously described as a grotesque relic of the Spanish Inquisition and a safe, effective, though very unpleasant method of interrogation. In the method employed by the C.I.A., the prisoner is strapped with his head down on a tilted board; his face is wrapped in damp cloths onto which water is poured for twenty to forty seconds. This gives the sensation of drowning, causing a reflexive feeling of suffocation and panic. The rules stated that waterboarding could take place only with a physician present to monitor the prisoner’s reaction.

  Members of the U.S. Special Forces and other elite troops have long had to experience a form of waterboarding as part of their SERE (Survival, Evasion, Resistance, and Escape) training program. Some officials and commentators argued that if waterboarding was part of U.S. troops’ training, it could not really be torture. However, when the writer Christopher Hitchens, with characteristic élan, voluntarily subjected himself to waterboarding at the SERE training center in North Carolina, he was required to sign a waiver that stated “waterboarding . . . participant can receive serious and permanent (physical, emotional, and psychological) injuries and even death.” Hitchens underwent the procedure and decided that as far as he was concerned it was indeed torture. 12

  According to U.S. government records, out of the thousands of terrorist suspects captured after 9/11 about a hundred were put into the C.I.A. program and about a third of these were questioned using the “enhanced” techniques. Despite the attention given to it by the world’s press and human rights organizations, it is important to stress that waterboarding was not widely used—altogether only three suspected terrorists were ever subjected to the treatment. 13

  President Bush later insisted that all these interrogation methods were “designed to be safe, to comply with our laws, our Constitution, and our treaty obligations. The Department of Justice reviewed the authorized methods extensively and determined them to be lawful.”14 Some senior members of the armed forces disagreed and wished to maintain what was sometimes called a “tradition of restraint” on interrogation and detainee treatment. Donald Rumsfeld accepted some of the enhanced techniques being used by members of the armed forces but never allowed any waterboarding at Guantanamo. The techniques remained contentious amongst those few administration officials who knew of them. Nonetheless, Rumsfeld later insisted that as a result of the C.I.A. interrogation program, “a major fraction of Al Qaeda’s senior leadership has been captured or killed since 2001.” 15

  Given the abuse that was heaped upon the Bush administration for its interrogation methods, one should note that it kept leading Democrats informed of the methods of interrogation being used and that at the time they made no objections. Bush wrote later, “At the time, some were concerned we weren’t pushing hard enough. But years later, once the threat seemed less urgent and the political winds had shifted, many lawmakers became fierce critics.” Some of them then alleged that they had been kept in the dark and that Bush had ordered torture in secret. One of those who complained thus was Nancy Pelosi, Democrat from San Francisco, who became Speaker of the House. However, administration records indicate that she, and many other members of Congress, had been fully briefed about the use of “enhanced interrogation techniques” and that they had raised no concerns or questions at the time. Subsequently Pelosi acknowledged this and claimed that she had not complained because she did not know that waterboarding was actually employed. 16

  Nor was the program, which was certainly a departure from past policy, quite as revolutionary as its critics believed. Benjamin Wittes, author and senior fellow of the Brookings Institution, wrote later, “High minded prohibitions of all coercive tactics have [long] coexisted with policies that, in the granular terms of actual implementation, have allowed a great deal more flexibility than the top-line rhetoric would suggest.” And he quoted William Levi’s study of declassified C.I.A. and Pentagon interrogation manuals, which authorized techniques just short of torture: “Almost without exception, the techniques approved at any one time post–9/11 for military interrogations of unlawful combatants . . . would have been understood to fall within the constraints of the Geneva Conventions for protected Prisoners of War.” 17

  After 9/11, the Harvard law professor and lawyer Alan Dershowitz considered the famous dilemma of the “ticking time bomb scenario” in an article entitled “Want to Torture? Get a Warrant.” He proposed the issuance of warrants permitting the torture of terrorism suspects, if there were an “absolute need to obtain immediate information in order to save lives coupled with probable cause that the suspect had such information and is unwilling to reveal it.” He argued that it would be less destructive to the rule of law to regulate the process than to leave it to the discretion of individual law enforcement agents. 18

  The British and Northern Irish governments had used similar techniques (except waterboarding) against Irish Republican Army (I.R.A.) suspects in Northern Ireland in the early 1970s. In 1978 the European Court of Human Rights (ECHR) had determined that the five techniques used (wall standing, hooding, subjection to noise, deprivation of sleep, and deprivation of food and drink) “as applied in combination undoubtedly amounted to inhuman and degrading treatment” but “did not occasion suffering the particular intensity and cruelty implied by the word torture.” 19

  Another insight on torture is provided by Nigel Biggar, Regius Professor of Moral Theology at Oxford University. He has argued that if the use of violent force in war is justified in the pursuit of peace—if a man can legitimately shoot at another—“then what’s so wrong with verbal threats, sleep deprivation, or even waterboarding? Can’t these, too, be administered without sadistic pleasure or malice and in proportion to what’s necessary to extract life-saving information? I imagine that they can. In which case, their proper name is ‘aggressive interrogation’ rather than ‘torture .’” 20

  Such careful, nuanced observations suggest that the whole debate on what constitutes torture is more complex than the angry critics of the U.S. government from both home and abroad would acknowledge.

  In the specific cases of the three A
l Qaeda prisoners waterboarded by the C.I.A., it seems very likely, as George W. Bush and other U.S. officials have insisted, that the process yielded important intelligence. However, against this must be set both moral concerns and the political harm done to the United States throughout the world by such “techniques.” Whether they were effective or not (and no form of interrogation is always effective), there is no question that their use does severe damage to the reputation of the government applying them. 21 And, as the political scientist Michael Walzer wrote in a famous 1973 essay, “The Problem of Dirty Hands,” about the politician who feels he has to make the decision to use torture to save lives. “His choices are hard and painful and he pays the price not only while making them but forever after.” 22

  The whole argument came to the fore once again after Osama bin Laden was found and executed by U.S. Navy SEALs in May 2011. Former officials of both the Bush administration and some serving members of the current Obama administration suggested that important parts of the intelligence that eventually led to his hiding place in Abbottabad, Pakistan, had originally derived from enhanced interrogation of detainees including Khalid Sheikh Mohammed. Others denied this. As we shall see, the fierce debate began again.

  The dilemma of the lesser evil endures.

  After his triumph on 9/11, Khalid Sheikh Mohammed was a hero among those few people in Al Qaeda who knew of his role in masterminding the attacks. He was promoted within the organization, becoming in effect the operations chief for Al Qaeda’s next international attacks. 23 As first C.I.A. officers and special forces soldiers, and then U.S. combat forces, entered Afghanistan in pursuit of Al Qaeda, Khalid Sheikh Mohammed helped many of its operatives flee into Pakistan and on towards the Middle East. He later claimed that he had planned a second wave of hijacking attacks on the United States to follow 9/11, but shifted his attention to Britain, partly because of the increased security measures in the U.S. and partly because of the British government’s strong alliance with Washington. He also claimed to be involved in dispatching the failed “shoe-bomber” Richard Reid, a hulking British misfit and convert to Islam, to blow up a transatlantic flight at the end of 2001. Reid had explosives in his shoes and his attempt at mass murder was thwarted only because alert passengers overpowered him before he could ignite this bomb. As a result of his failed attack airline passengers have been compelled since then to remove their shoes at airport security—another indignity imposed upon the world’s patient public by Islamist terror.