Human Rights

Thousands of Pages of Evidence and a Quarter Million Signatures: What Will It Take For Attorney General to Prosecute Torture Crimes?

Amid citizen outrage and news that torture was used to extract a link between Iraq and al Qaeda, Eric Holder won't say if he intends to prosecute.

By the time Attorney General Eric Holder took his seat before a Congressional subcommittee on Thursday, the Bush torture program had broken wide open. In the past week alone, hundreds of pages in declassified legal memos and Congressional reports had blown the lid off the previous administration's harsh interrogation policies to reveal -- in addition to grisly new details about what the U.S. government did to prisoners in its custody -- a chronology of the program's history that implicated the most senior government officials, including Condoleezza Rice, Donald Rumsfeld, Dick Cheney, Paul Wolfowitz, and of course the former president. What's more, it appeared that the torture of high-value detainees in 2002 and 2003 was, at least in part, the direct consequence of Bush officials' need to extract a link -- fictitious or otherwise -- between al Qaeda and Saddam Hussein in the run-up to the invasion of Iraq.

Damning stuff, to be sure. Yet watching Holder's testimony before the House Appropriations Committee, where his office was met with a coalition of activists delivering petitions carrying 250,000 signatures from Americans who support appointing an independent prosecutor to investigate Bush's crimes, it would be hard to guess that it came in a week that saw such a flood of evidence of human rights violations and war crimes come to light. Reiterating his contention (following the initial release of legal memos last week outlining the rationale for Bush era torture) that "those in the intelligence community who acted reasonably and in good faith are not going to be prosecuted," Holder also reassured the committee members that he "will not permit the criminalization of policy differences" -- an almost superfluous response to one of the bogus conservative talking points that has sprung up -- the notion that holding accountable lawyers who authorized flagrantly illegal techniques against U.S. held prisoners will have a "chilling effect" on advisers' opinions. But, he said, "it is my responsibility as attorney general to enforce the law. ... If I see evidence of wrongdoing I will pursue it to the full extent of the law." Very well, but with virtually no references to the avalanche of evidence that emerged this week, Holder's words, like President Obama's pep-rally style speech before the CIA last week and the hearing itself (which, in fairness, was held to discuss the 2010 budget of the DOJ), largely belied the severity of what has been revealed in the past week.

To recap: Holder's appearance came one week to the day after the release of the infamous OLC memos, which describe in chilling detail the methodology of the CIA's "enhanced interrogation" program. The documents sparked fresh revulsion in the media and blogosphere over the Bush administration's torture program, while also prompting renewed calls for the Obama administration to investigate and hold accountable those who authorized it. Despite President Obama's immediate announcement that CIA rank and file would not face charges -- "it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution" -- online and in the pages of the New York Times, the call for accountability was deafening. From the push to impeach former OLC lawyer turned judge Jay Bybee, who currently enjoys a seat on the federal bench, to the heckling of former OLC attorney John Yoo (the veritable godfather of the OLC's pro-torture rationale) at a California college where audience members shouted "war criminal" as he took the stage, people were outraged.

Then, on Tuesday night, the Senate Armed Services Committee released its 263-page "Inquiry Into the Treatment of Detainees In U.S. Custody," an exhaustive look at the Bush administration's torture program following September 11th. Based on over 200,000 pages of classified and unclassified documents and interviews with more than 70 people (mostly Pentagon officials), the document is more than a catalog and condemnation of the torture program. It officially upends the dishonest narrative that has been used to excuse the abuse of prisoners in U.S. custody ever since the first photographs of hooded prisoners left Abu Ghraib. "The abuse of detainees in U.S. custody cannot simply be attributed to the actions of 'a few bad apples' acting on their own," read the report, using the very language Secretary of Defense Donald Rumsfeld employed to dismiss the abuse in 2005. "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 Senate Armed Services report revealed a number of other significant details, including a more complete chronology of the development and authorization of the torture program. Writing on theNew Yorker website, investigative journalist Jane Mayer wrote that the Senate report makes clear that "the C.I.A. and the military were preparing a blueprint for brutality months before they even had captured a single high-level Al Qaeda operative." While the OLC memos have long been understood to have been designed to grant legal cover to practices already in place, this fact would seem to carry significant legal implications even if they are taken at face value.

The tortured case for invading Iraq

The night that the Senate Armed Services Committee report came out, McClacthy reporter Jonathan S. Landay published a story reporting that "harsh methods" were rolled out specifically to extract a fictitious connection between Iraq and al Qaeda, according to excerpts from an interview with a former military psychologist that was included in the report. "A former U.S. Army psychiatrist, Maj. Charles Burney, told Army investigators in 2006 that interrogators at the Guantanamo Bay, Cuba, detention facility were under 'pressure' to produce evidence of ties between al Qaida and Iraq," Landay wrote.

"While we were there a large part of the time we were focused on trying to establish a link between al Qaida and Iraq and we were not successful in establishing a link between al Qaida and Iraq," Burney told staff of the Army Inspector General. "The more frustrated people got in not being able to establish that link ... there was more and more pressure to resort to measures that might produce more immediate results."

"I think it's obvious that the administration was scrambling then to try to find a connection, a link (between al Qaida and Iraq)," Senate Armed Services Chair Carl Levin told reporters in a conference call Tuesday. "They made out links where they didn't exist."

Landay also quoted a former intelligence official, who said, "There were two reasons why these interrogations were so persistent, and why extreme methods were used."

"The main one is that everyone was worried about some kind of follow-up attack (after 9/11). But for most of 2002 and into 2003, Cheney and Rumsfeld, especially, were also demanding proof of the links between al Qaida and Iraq that (former Iraqi exile leader Ahmed) Chalabi and others had told them were there."

As Landay pointed out, "It was during this period that CIA interrogators waterboarded two alleged top al Qaida detainees repeatedly -- Abu Zubaydah at least 83 times in August 2002 and Khalid Sheik Muhammed 183 times in March 2003 -- according to a newly released Justice Department document."

Knowingly seeking false confessions?

News of the Bush administration's use of torture to extract intelligence that would suit its war is especially troubling given what the Senate Armed Services Committee report reveals about the background of the interrogation techniques it devised. The report provides the detailed story of how, as early as December 2001 -- more than a month before President George W. Bush signed a memorandum declaring that those who could be linked to the terror attacks of September 11th would be stripped of the rights traditionally given to prisoners of war -- "the Department of Defense General Counsel's Office had already solicited information on detainee 'exploitation' from the Joint Personal Recovery Agency, an agency whose expertise was in training American personnel to withstand interrogation techniques considered illegal under the Geneva Conventions."

As the report explains:

The JPRA is the Pentagon agency that oversees the now famous Survival Evasion Resistance and Escape (SERE) training, which teaches U.S. military personnel to withstand "physical and psychological pressures" using methods that, according to one JPRA instructor, is "based on illegal exploitation (under the rules listed in the 1949 Geneva Convention Relative to the Treatment of Prisoners of War) of prisoners over the past 50 years."
The techniques used in SERE school, based, in part, on Chinese Communist techniques used during the Korean war to elicit false confessions, including stripping students 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. It can also include face and body slaps and until recently, for some who attended the Navy's SERE school, it included waterboarding.

Crucially, the report points out that the SERE methods were never designed to obtain reliable information, noting that "typically, those who play the part of interrogators in SERE school neither are trained interrogators nor are they qualified to be."

These role players are not trained to obtain reliable intelligence information from detainees. Their job is to train our personnel to resist providing reliable information from detainees.

The fact that the Bush administration adopted and aggressively used methodology designed to extract false confessions is a bit mind boggling -- unless one assumes that they weren't actually looking for a real rationale to begin with, just any statement that would justify invading Iraq.

Holder must investigate war crimes

"There are plenty of new names and details in the Armed Services Committee report," Jane Mayer wrote this week, "including a scene of two military men teaching the C.I.A. how to use Chinese torture techniques. One of the instructors, Joseph Witsch, played the 'beater,' while the other, Gary Percival, became the 'beatee.' By the mid-summer of 2002, beating was no longer just an academic exercise. Precisely when these tactics were used on live captives, and at what point top Bush officials endorsed them, may be a matter of serious interest to Attorney General Eric Holder."

Indeed, from the OLC memos to the Senate Armed Services Committee report, the sum total of everything that should be of serious interest to Eric Holder is overwhelming. Perhaps it is too soon to say what if anything will come of his vow this week "to follow the evidence wherever it takes us." But it would be a serious miscarriage of justice not to begin taking steps to investigate and prosecute these crimes of war. If Holder and the Obama DOJ do not, it will not be for lack of evidence.

As Eric Holder left the hearing room on Thursday, David Swanson, one of the most vocal activists calling for prosecutions for Bush's crimes, called out to him from his third-row seat.

"We need a special prosecutor for torture, Mr. Attorney General," Swanson said. "Americans like the rule of law. The rule of law for everybody."

He replied as he approached and walked by, surrounded by bodyguards:
"And you will be proud of your country."
I was joined by others in replying simultaneously:
"Yes, we want to be proud of our country. We're ready. No need to wait."
Holder knew exactly what it would take for me to be proud of my country, and he told me directly that I would be.
Will I? Time will tell.
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