As a result, Cheney knew that, on the tenth anniversary of the terrorist attacks that launched the “war on terror” that he is still so concerned to defend, his voice would be echoing in the ears of millions of his countrymen and women, helping to disguise a bitter truth: that, following the 9/11 attacks, Cheney was largely responsible for the abomination that is Guantánamo, and for the torture to which prisoners were subjected from Abu Ghraib to Bagram to Guantánamo and the “black sites” that littered the world.

Alarmingly, while Cheney has been largely successful in claiming that the use of torture was helpful, despite a lack of evidence that this was the case, what strikes me as even more alarming is that many Americans are still unaware of the extent to which the torture for which Cheney was such a cheerleader did not keep them safe from terrorist attacks, but actually provided a lie that was used to justify the invasion of Iraq in March 2003.

As a long time believer in unfettered executive power, Cheney’s fingerprints are all over the Bush administration’s response to the 9/11 attacks, along with those of his legal counsel, David Addington. The two men had met while defending Ronald Reagan during the Iran-Contra scandal, on the basis that the President should be beyond criticism, and it was Cheney and Addington who were behind a military order issued by George W. Bush on November 13, 2001, which established the President’s right to hold those he regarded as terrorists as a new type of prisoner (who later became the infamous “enemy combatants”), and, if he wished, to prosecute them in trials by military commission, which were designed to secure easy convictions and to use evidence derived through the use of torture.

It was Addington, no doubt after consultation with Cheney, who wrote the memo to President Bush on January 25, 2002, signed by White House Counsel Alberto Gonzales, which claimed that the Geneva Conventions contained “quaint” provisions, and that the circumstances in which the “war on terror” was being waged rendered “obsolete” the Conventions’ “strict limitations on questioning of enemy prisoners.” The memo advised the President to discard the Geneva Conventions for the prisoners at Guantánamo, which had opened two weeks earlier.

The purpose was to allow coercive interrogations, and even the use of torture, and this became official policy on August 1, 2002, when another of Cheney’s colleagues, John Yoo, a lawyer in the Justice Department’s Office of Legal Counsel, which is supposed to provide the executive branch with impartial legal advice, wrote two memos known as the “torture memos,” which attempted to redefine torture — including the use of waterboarding, a form of controlled drowning — so that it could be used by the CIA.

With the help of another of Cheney’s circle of close colleagues — Jim Haynes, the Pentagon’s General Counsel — the torture techniques chosen were reverse-engineered from those taught in US military schools to help US military personnel resist interrogation if captured by a hostile enemy. Haynes had made the first approach to the organization responsible for the program, known as SERE (Survival, Evasion, Resistance and Escape), and he also played a role in the spread of torture techniques to Guantánamo, as approved by defense secretary Donald Rumsfeld in November 2002, which then spread to Iraq, leading to the horrors that were revealed around the world when the Abu Ghraib scandal broke in April 2004.

Even so, Cheney’s biggest crime, to my mind, remains the way in which, while pretending to use torture to protect the American people from further terrorist attacks, he actually used it to attempt to justify the illegal invasion of Iraq in March 2003. This bleak story involves Ibn al-Shaykh al-Libi, who ran a training camp in Afghanistan — Khalden — that was shut down by the Taliban in 2000 after he refused to allow Osama bin Laden to take it over.  Al-Libi was initially interrogated by the FBI, but they were brushed aside by the CIA, who flew al-Libi to Egypt, where the torturers of Hosni Mubarak’s savage regime secured a patently false confession that Saddam Hussein had met with two al-Qaeda operatives to discuss the use of chemical and biological weapons.

Al-Libi recanted the false confession obtained through torture — which apparently included waterboarding — in 2004, although the Defense Intelligence Agency (DIA) had concluded at the time of the confession, in February 2002, that al-Libi had misled his torturers. However, no one told Colin Powell, who used it in the presentation he made to the UN Security Council in February 2003, a month before the invasion. This is alarming enough, but as it is clear that Dick Cheney knew about the DIA’s analysis that al-Libi had lied, the only conclusion that can be drawn is that, while pretending to protect the American people, Cheney was actually responsible for using a lie obtained through torture to justify an illegal war that would lead to the deaths of thousands of US military personnel, and of hundreds of thousands of Iraqi civilians.

Torture is a crime, for which Dick Cheney should pay, on the 10th anniversary of the 9//11 attacks, rather than being feted as some sort of entertainingly opinionated elder statesman. Above all, however, the al-Libi episode reveals the former Vice President not only as a torturer, but also as some sort of a traitor, making his continued ability to walk free, and to continue spreading his self-serving lies, a damning state of affairs for America as a whole, and one that should make decent Americans recoil in shame and horror from what they and their country have become.

Note: For more on the bleak story of Ibn al-Shaykh al-Libi, see Ibn al-Shaykh al-Libi Has Died In A Libyan Prison and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi. For more on the malignant influence of Dick Cheney, see Dick Cheney: invisible tyrant, Dick Cheney: more horrors from the ‘Vice-President for Torture’, The Ten Lies of Dick Cheney (Part One), The Ten Lies of Dick Cheney (Part Two), Prosecuting the Bush Administration’s Torturers and Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low.

Originally published on the Future of Freedom Foundation.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

Former United States Secretary of Defense Donald Rumsfeld speaking at CPAC 2011 in Washington, DC. Rumsfeld has recently denied knowledge of any waterboarding by US military personnel taking place at Guantanamo Bay. Photo: Gage Skidmore/Flickr

This report was written by Jeffrey Kaye and originally published on Truthout.

In the controversy over whether torture, especially waterboarding, was used to gather information leading to the capture of Osama bin Laden, former Secretary of Defense Donald Rumsfeld told Fox News’ Sean Hannity recently that “no one was waterboarded at Guantanamo by the US military. In fact, no one was waterboarded at Guantanamo, period.”

In his memoir, “Known and Unknown,” Rumsfeld maintained, “To my knowledge, no US military personnel involved in interrogations waterboarded any detainees,not at  Guantanamo or anywhere else in the world.” But as we shall see, Rumsfeld was either lying outright, or artfully twisting the truth.

Others have insisted as well that the military never waterboarded anyone. Law and national security writer Benjamin Wittes wrote in The New Republic last year that “the military, unlike the CIA, never waterboarded anybody.” Harper’s columnist Scott Horton also noted last year, “There is no documentation yet of waterboarding at Gitmo, but the case book is far from closed on that score, too.”

Yet, though not widely reported and scattered among various articles and reports on detainee treatment by the military, including first-person accounts, there are a number of stories of forced water choking or drowning, both at Guantanamo and other US military sites.

In little-known testimony in May 2008 before Congress, former Guantanamo detainee Murat Kurnaz testified he endured a form of simulated drowning. In his testimony before a subcommittee of the House Committee on Foreign Affairs, Kurnaz said that under US military captivity at Khadahar, Afghanistan, prior to his transfer to Guantanamo, his head was “dunked under water to simulate drowning.”

Asked by Republican Congressman Rohrabacher if he hadn’t then been waterboarded, Kurnaz responded, “No, it’s not waterboarding. It’s called ‘water treatment.’ There was a bucket of water.”

ROHRABACHER: Was a cloth put over your face and you were put on a board?

KURNAZ: There was a bucket of water. And they stick my head in it and at the same time, punch me into my stomach.

Rohrabacher reportedly commented, “The CIA is claiming that only three people have been waterboarded. And this may be a loophole that they’re suggesting that’s not ‘waterboarding.’”

According to a report on Kurnaz’s testimony at the time by The Christian Science Monitor, Pentagon spokesman Cmdr. Jeffrey Gordon replied to the torture charges: “The abuses Mr. Kurnaz alleges are not only unsubstantiated and implausible, they are simply outlandish.”

Whether implausible or not, waterboarding was one of a number of “counter-resistance techniques” requested for use at Guantanamo by Maj. Gen. Mike Dunleavy, commander of Task Force 170. In an October 2002 memo from Dunleavy’s intelligence chief requesting use of a number of techniques, including sensory deprivation, isolation, stress positions, forced nudity and death threats, there was also a proposal for “Use of a wet towel and dripping water to induce the misperception of suffocation.”

In a follow-up memo approving most, but not all of the requested techniques, Department of Defense (DoD) general counsel William J. Haynes II said of the “wet towel” and other so-called “aggressive” “Category III” techniques, “While all Category III techniques may be legally available, we believe that, as a matter of policy, a blanket approval of Category III techniques is not warranted at this time.” (Emphasis added.)

Water Torture at Guantanamo

Evidence regarding waterboarding or other forms of water torture by suffocation or choking at Guantanamo has been reported, but this article is the first collection of the various reports in one place.

Last April, a report by two doctors who were allowed to examine “medical records and relevant case files … of nine individuals for evidence of torture and ill treatment,” found at least one case of “near asphyxiation from water (i.e., hose forced into the detainee’s mouth)” and another case where a detainee’s head was forced into a toilet.

The report, by doctors Vincent Iacopino and Stephen N. Xenakis, was published at PLoS Medicine. Dr. Xenakis is also a retired brigadier general in the Army, who has worked as a medical consultant on a number of Guantanamo legal cases.

Additionally, accusations of military waterboarding turned up in a Department of Justice (DOJ) Inspector General (IG) report on “FBI Involvement in and Observations of Detainee Interrogations” that was released at almost the same time as Kurnaz’s testimony (May 2008). The IG noted that the chief of the FBI’s Military Liaison and Detainee Unit at Guantanamo told DoD Assistant Attorney General Dave Nahmias, “one of the planned or actual techniques used on [purported 9/11 would-be hijacker, Mohammed] Al Qahtani was simulated drowning.”

In fact, the military admits the use of pouring water over al Qahtani’s head, as is discussed below.

At another point in the report, the IG describes one FBI agent who “once heard a discussion at GTMO when someone mentioned using water as an interrogation tool and someone else in the group said, ‘Yeah, I’ve seen that.’” According to the IG report, no FBI agent actually reported seeing waterboarding or water torture him or herself.

Whether or not waterboarding was observed by FBI agents at Guantanamo, we know from the minutes of a “Counter-resistance Strategy meeting” at Guantanamo on October 22, 2002, that waterboarding (called the “wet towel” technique) was discussed (see Tab 7 at link). The meeting included legal officials from the CIA, DIA, the Guantanamo intelligence chief, as well as members of the Guantanamo Behavioral Science Consulting Team (BSCT).

At one point, Lt. Col. Diane Beaver, the Staff Judge Advocate at Guantanamo asked whether SERE (Survival, Evasion, Resistance and Escape) employed “the ‘wet towel’ technique.” Jonathan Fredman, then chief counsel to the CIA’s counter-terrorism center, replied:

“If a well-trained individual is used to perform [sic] this technique it can feel like you’re drowning. The lymphatic system will react as if you’re suffocating, but your body will not cease to function. It is very effective to identify phobias and use them (ie, insects, snakes, claustrophobia). The level of resistance is directly related to person’s experience.”

At this point, a BSCT psychiatrist noted, “Whether or not significant stress occurs lies in the eye of the beholder. The burden of proof is the big issue.” Fredman replied, “These techniques need involvement from interrogators, psych, medical, legal, etc.”

Fredman continued “The CIA makes the call internally on most of the types of techniques found in the BSCT paper and this discussion.” In a reference to the approvals for waterboarding and other techniques given the CIA by Office of Legal Counsel memos a few months before, he added, “Significantly harsh techniques are approved through the DOJ.” There was no indication in the minutes from the meeting that waterboarding was not allowed for Defense Department use.

Waterboarding of Mohammed al Qahtani

Mohammed al Qahtani was a Saudi Arabian citizen brought to Guantanamo in early 2002. Ostensibly believed to be a part of the 9/11 plot, when interrogators became frustrated at their inability to get information out of him, or force his compliance, they turned to methods of interrogation that the Guantanamo Convening Authority Susan Crawford would later herself conclude amounted to torture.

By November 2002, al Qahtani had become the “first subject of a Special Interrogation Plan,” which relied heavily on the military’s SERE torture school techniques, including isolation, stress positions, sexual humiliation and apparently, a form of waterboarding. SERE was created to provide US military personnel with training to resist torture.

Even years before Crawford’s admission, DoD’s Schmidt-Furlow report, looking at early allegations of detainee abuse, concluded that “the creative, aggressive and persistent interrogation of the subject of the first Special Interrogation Plan [al Qahtani] resulted in the cumulative effect being degrading and abusive treatment.” No one has ever been charged for such crimes committed against this or any other Guantanamo detainee.

The Schmidt-Furlow report details the use of water torture on al Qahtani, an aspect of his torture that has been little reported:

On seventeen occasions, between 13 Dec 02 and 14 Jan 03, interrogators, during interrogations, poured water over the subject of the first Special Interrogation Plan head….

There is evidence that the subject of the first Special Interrogation Plan regularly had water poured on his head. The interrogation logs indicate that this was done as a control measure only.

Time Magazine published al Qahtani’s interrogation logs  in 2005. The use of water to drench al Qahtani’s head does not appear to be a “control measure” when it is discussed in the logs themselves.

On December 23, 2002, a log selection describes how interrogators hung pictures of swimsuit models around al Qahtani’s neck. Then the lead interrogator “pulled pictures of swimsuit models off detainee and told him the test of his ability to answer questions would begin. Detainee refused to answer and finally stated that he would after [the] lead [interrogator] poured water over detainees [sic] head and was told he would be subjected to this treatment day after day. Detainee was told to think about his decision to answer questions.”

The day before, when al Qahtani had refused to look at “fitness photos,” saying it was against his religion, interrogators had “poured a 24 oz bottle of water over detainee’s head.” The log notes dryly, “Detainee then began to look at photos.”

In their investigation of detainee abuse, the Senate Armed Services Committee (SASC) noted in a 2008 report that the Navy limited waterboard demonstrations to two pints (32 oz.) of water. A January 13, 2003, memo, described in the SASC report, underreported how much water was poured over Qahtani, saying that “up to eight ounces of water” was poured over Qahtani’s head as a “method of asserting control” when Khatani exhibited ”undesired behavior.”

The SASC report also said that the interrogation plan for another Guantanamo detainee, Mohamadou Walid Slahi, included the practice of pouring water over Slahi’s head to “enforce control” and “keep [him] awake.”

Three More Guantanamo Detainees Report Suffocation by Drowning

Besides Kurnaz and al Qahtani, at least three other detainees have reported being tortured at Guantanamo by application of water meant to cause suffocation, choking or the sensation of drowning.

A 2009 article by Jeremy Scahill outlined the torture and abuse endured by former Guantanamo detainee and British resident Omar Deghayes. Scahill mentions two incidents where the Immediate Reaction Force (IRF, sometimes called the Emergency Reaction Force, or ERF) used forms of water torture on Deghayes. In one case, the detainee was shackled, his head put into a toilet. The IRF team “pressed his face into the water. They repeatedly flushed it.”

The IRF or ERF team also came into Deghayes cell on another occasion and conducted a simulated or partial drowning.

The ERF team came into the cell with a water hose under very high pressure. [Deghayes] was totally shackled and they would hold his head fixed still. They would force water up his nose until he was suffocating and would scream for them to stop. This was done with medical staff present and they would join in.

According to Scahill, the IRF team conducted this form of waterboarding three times on Deghayes. Note that the presence of medical staff is consistent with the use of medical personnel under CIA descriptions of how they conducted waterboarding.

Another example of water torture involving Guantanamo guards appears in a document related to the case of Djamel Ameziane, an Algerian Berber who has been held at Guantanamo for over eight years, despite the fact he never received military or terrorist training, nor fought against the US. According to 2008 legal filing for Ameziane by the Center for Constitutional Rights (CCR):

In another violent incident, guards entered his cell and forced him to the floor, kneeing him in the back and ribs and slamming his head against the floor, turning it left and right. The bashing dislocated Mr. Ameziane’s jaw, from which he still suffers. In the same episode, guards sprayed cayenne pepper all over his body and then hosed him down with water to accentuate the effect of the pepper spray and make his skin burn. They then held his head back and placed a water hose between his nose and mouth, running it for several minutes over his face and suffocating him, an operation they repeated several times. Mr. Ameziane writes, “I had the impression that my head was sinking in water. I still have psychological injuries, up to this day. Simply thinking of it gives me the chills.” [Emphasis added.]

In March 2008, six Guantanamo detainees filed suit against Bosnia and Herzegovina in the European Court of Human Rights in Strasbourg for failure “for many years to take any steps to negotiate and secure the men’s release from Guantanamo.” One of the men, Mustafa Ait Idr, who had been rendered to Guantanamo and “taken from his pregnant wife in violation of a Bosnian court order to free him,” also reported use of water torture in a manner remarkably similar to that of Ameziane.

A CCR report on “Torture, Cruel, Inhuman and Degrading Treatment of Prisoners at Guantanamo Bay, Cuba” said that on one occasion prison guards demanded to search Idr’s cell. Idr cooperated, but they came in, sprayed him in the face with a chemical irritant and put him into restraints.

According to the CCR report, “Guards then slammed him head first into the cell floor, lowered him, face-first into the toilet and flushed the toilet – submerging his head. He was then carried outside and thrown onto the crushed stones that surround the cells. While he was down on the ground, his assailants stuffed a hose in his mouth and forced water down his throat.” As a result, Idr’s face was paralyzed for several months.

Other threats to use waterboarding on DoD prisoners, or to rendition detainees for water torture, are also on record. According to journalist Robert Windrem in a 2009 story at The Daily Beast, then Vice President Dick Cheney requested the waterboarding of Muhammed Khudayr al-Dulaymi, the head of the M-14 section of Mukhabarat. According to the article, the official in charge of interrogations of Iraqi officials at the time, Charles Duelfer, declined the request.

According to the SASC detainee report, the lead agency for SERE, Joint Forces Personnel Agency, constructed a CONOP (Concept of Operations) plan for use at a Special Mission Unit Task Force interrogation center in Iraq. The CONOP recommended use of the “water board.” Military legal figures reportedly objected to that and other techniques, but it is not known whether Special Forces in Iraq used waterboarding or other water torture techniques and the SASC report does not enlighten us on that point.

In another case, former Italian resident and Guantanamo detainee, Tunisian-born Saleh Sassi, reported that in late 2002, Tunisian agents came to Guantanamo and interrogated him. They “left no doubt about what awaited ex-Guantanamo inmates back in Tunisia: ‘water torture in the barrel’ and other horrors.” Sassi was released and sent to Albania in 2010.

Finally, the DOJ IG report on FBI interrogations referenced earlier describes how an Abu Ghraib prisoner, Saleh Muklef Saleh, was restrained and had cold water poured over him on more than one occasion. One time, according to Saleh’s own testimony, “They gave me one or two bottles of water and they asked me to drink it while I was hungry and they forced me to drink it and I did and I felt vomiting, then they ordered me to drink again and they were looking at me and laughing” (pp. 279-280).

Back in 2008, during the Congressional meeting where Murat Kurnaz testified to the use of water torture upon him, Democratic Congresswoman Sheila Jackson-Lee commented, “It seems that we have a new definition … If you were wedded to the language of waterboarding, now we have new language called ‘water treatment,’ which may bear on being torture as well.”

To date, there has been no investigation that specifically has looked at the use of types of water torture, including waterboarding or water treatment, on detainees. The military’s current Army Field Manual on interrogation forbids the use of “waterboarding.” It is the only “prohibited action” term that is described with quotation marks around it.

A Human Rights Watch report issued on July 12 called for President Barack Obama “to order a criminal investigation into allegations of detainee abuse authorized by former President George W. Bush and other senior officials.”

Jeffrey Kaye, a psychologist living in Northern California and a regular contributor to Truthout, blogs about civil liberties and issues revolving around the US government’s torture program at The Dissenter. He can be reached at sfpsych at gmail dot com. Follow Jeff on Twitter: @Jeff_Kaye

In particular, HRW singled out “four key leaders” in the torture program. Besides former President George W. Bush, the report indicts former Vice President Dick Cheney, Secretary of Defense Donald Rumsfeld, and CIA Director George Tenet. But others remain possible targets of investigation and prosecution. According to the report:

Such an investigation should also include examination of the roles played by National Security Advisor Condoleezza Rice and Attorney General John Ashcroft, as well as the lawyers who crafted the legal “justifications” for torture, including Alberto Gonzales (counsel to the president and later attorney general), Jay Bybee (head of the Justice Department’s Office of Legal Counsel (OLC)), John Rizzo (acting CIA general counsel), David Addington (counsel to the vice president), William J. Haynes II (Department of Defense general counsel), and John Yoo (deputy assistant attorney general in the OLC).

But the key passage in the HRW report concerns the backing for international prosecutions, under the principle in international law of “universal jurisdiction,” which was used back in 1998 by Spanish Judge Baltasar Garzón to indict former Chilean dictator Augusto Pinochet for genocide and murder.

Unless and until the US government pursues credible criminal investigations of the role of senior officials in the mistreatment of detainees since September 11, 2001, exercise universal jurisdiction or other forms of jurisdiction as provided under international and domestic law to prosecute US officials alleged to be involved in criminal offenses against detainees in violation of international law. [emphasis added]

Indeed, in an important section of the report, HRW details the failures and successes of pursuing such international prosecutions in the face of U.S. prosecutors’ failure to act and investigate or indict high administration officials for war crimes. This is even more important when one considers that the Obama administration has clearly stated its intention to not investigate or prosecute such crimes, going after a handful of lower-level interrogators for crimes not covered by the Bush administration’s so-called “legal” approvals for torture provided by the infamous Yoo/Bybee/Levin/Bradbury memos issued by the Office of Legal Counsel.

Nor has Congress shown even a smidgen of appetite for pursuing further accountability: not one Congressman or Senator has stepped forward as yet to endorse HRW’s new call. Instead, they demonstrated their obsequiousness by approving Obama’s nomination of General David Petraeus as new CIA director 94-0, despite the fact that Petraeus has been implicated in the organization of counter-terror death squads in Iraq, and was in charge of training Iraqi security forces who repeatedly were documented as engaging in widespread torture. It was during Petraeus’s tenure as chief of such training for the coalition forces, that the U.S. implemented the notorious Fragmentary Order (FRAGO) 242, which commanded U.S. forces not to intervene in cases of Iraqi governmental torture should they come across such it (which they often did). No one during Petraeus’s testimony in his nomination hearings even questioned him about this.

Why this report now?

I asked Andrea Prasow, a senior counsel at Human Rights Watch, why this report was issued now, noting that some on the left had already questioned the timing of HRW’s action.

“Because it really needed to be done,” Prasow explained. She noted the recent admissions by former President Bush and Vice President Cheney that they had approved waterboarding. Furthermore, “following the killing of [Osama] Bin Laden, we saw the immediate response by some that torture and the enhanced interrogation techniques led to the capture of Bin Laden. And it became a part of normal debate about torture. It shows how fragile is the current commitment not to torture.”

Prasow also noted the recent closure of the Durham investigation, which resulted in the decision to criminally investigate the deaths of two detainees in CIA custody, while 99 other cases referred to his office were closed. I asked her whether she felt, as I do, that the announcement of the two investigations were meant to forestall attempts by European (especially Spanish) prosecutors to pursue “universal jurisdiction” prosecutions of U.S. officials for torture.

“I don’t see how there’s a defensible justification that the investigations Durham announced can do that,” Prasow said. “It’s pretty clear that there should be an investigation into the deaths of these detainees,” she added, “but it’s so clear the investigation is very limited. The scope of the investigation is the most important part. Even if Durham had investigated the 100 or so cases that exceeded the legal authorities, it wouldn’t be sufficient. What about the people who wrote the legal memos? Who told them to write the memos?” she said, emphasizing the fact that Durham’s investigation was limited by Obama and Attorney General Eric Holder to only CIA crimes, and only those that supposedly exceeded the criteria for “enhanced interrogation” laid out in a number of administration legal memos. The torture, Prasow noted, was “throughout the military” as well, including “hundreds or thousands” tortured at sites in Iraq, Afghanistan and Guantanamo.

Prasow noted that the Obama administration has made it policy to block attempts by torture victims to get compensation for torture, asserting a policy of protecting “state secrets” to shut down court cases. “But there are other ways of providing redress,” she said, adding that “providing redress is part of international laws.” The HRW report itself states, “Consistent with its obligations under the Convention against Torture, the US government should ensure that victims of torture obtain redress, which may include providing victims with compensation where warranted outside of the judicial context.”

The new HRW report comes on the heels of a controversy roiling around a proposed United Kingdom governmental inquiry into torture. A number of British human rights and legal agencies have said they would boycott the UK proceedings as a “whitewash.” As Andy Worthington put it the other day:

As a result of pandering to the Americans’ wishes, the terms of reference are “so restrictive,” as the Guardian described it, that JUSTICE, the UK section of the International Commission of Jurists, warned that the inquiry “was likely to fail to comply with UK and international laws governing investigations into torture.” Eric Metcalfe, JUSTICE’s director of human rights policy, said that the rules “mean that the inquiry is unlikely to get to the truth behind the allegations and, even if it does, we may never know for sure. However diligent and committed Sir Peter [Gibson] and his team may be, the government has given itself the final word on what can be made public.”

Andrea Prasow echoed Metcalfe’s fears, saying HRW had “some concerns about how much information [in the UK inquiry] was going to be kept secret. I think transparency, making it as public as possible, is most important.”

The fight for transparency also makes HRW’s call for prosecutions of high government officials, along with “an independent, nonpartisan commission, along the lines of the 9-11 Commission, [that] should be established to examine the actions of the executive branch, the CIA, the military, and Congress, with regard to Bush administration policies and practices that led to detainee abuse,” very timely. In a column the other day at Secrecy News — Pentagon Tightens Grip on Unclassified Information — Steven Aftergood reported on a Department of Defense proposed new rule regarding classification. While the Obama administration is supposedly on record for greater governmental transparency, the new rule imposes “new safeguard requirements on ‘prior designations indicating controlled access and dissemination (e.g., For Official Use Only, Sensitive But Unclassified, Limited Distribution, Proprietary, Originator Controlled, Law Enforcement Sensitive).’”

According to Aftergood, “By ‘grandfathering’ those old, obsolete markings in a new regulation for defense contractors, the DoD rule would effectively reactivate them and qualify them for continued protection under the new Controlled Unclassified Information (CUI) regime, thereby defeating the new policy.” Even worse (if possible), “the proposed rule says that any unclassified information that has not been specifically approved for public release must be safeguarded. It establishes secrecy, not openness, as the presumptive status and default mode for most unclassified information.”

Much of what we know about the Bush-era torture program is due to the work of the ACLU and Center for Constitutional Rights, who have used the Freedom of Information Act to gather hundreds of documents, if not thousands, that document the paper trail surrounding the crimes of the Bush administration. Reporters and investigators like Jane Mayer, Philippe Sands, Alfred McCoy, and Jason Leopold have also contributed much to our understanding of what occurred during the Bush years. The work of investigators going back years demonstrates that U.S. research into and propagation of torture around the world goes back decades.

The Senate Armed Services Committee has also produced an impressive, if still partially redacted, investigation (large PDF) into detainee abuse by the Department of Defense. Their report, for instance, concluded regarding torture at Guantanamo that “Secretary of Defense Donald Rumsfeld’s authorization of interrogation techniques at Guantanamo Bay was a direct cause of detainee abuse there.”

When one puts together the accelerated emphasis on “state secrets”; the Obama political program of “not looking back” in regards to U.S. war crimes (while supposedly pursuing accountability for torture and war crimes committed by other countries); the political passivity, if not cowardice of Congress; the fact that Obama “has not been transparent on the rendition issue, not even saying what its policy is,” according to Andrea Prasow; and finally the lies and propaganda spewed forth by the former Administration’s key figures and their proxies, one can only agree with HRW that enough is enough. The time for investigations and prosecutions into torture and rendition is now.

And if they won’t listen in Washington, D.C., perhaps they will in Madrid. Or some other intrepid prosecutor in — who knows? — Brazil or Argentina or Chile will pay back America, as a matter of poetic but also real justice for the crimes endured by their societies when the U.S. helped organize torture and terror in their countries only a generation ago. There were no U.S. investigations into actions of government figures then, and now we are faced with another set of atrocities produced by our own government. If we do not act now, what will our children face?

Originally published at Firedoglake.

Jeffrey Kaye is a psychologist living in Northern California who writes regularly on torture and other subjects for The Public Record, Truthout and Firedoglake. He also maintains a personal blog, Invictus. His email address is sfpsych at gmail dot com.

Photo/Wikimedia

Last Monday, on the very same day that the Obama administration gave up on Guantánamo, so too did the Supreme Court. As far as we know, it was not a choreographed climbdown — nor had money been offered by George W. Bush and Dick Cheney to rehabilitate their legacies — but the effect was the same.

For opponents of the unconstitutional aberration that is Guantánamo, last Monday — April 4, 2011 — will go down in the history books as the day that they were obliged to watch impotently as federal court trials for terrorist suspects were discarded or discredited, the tired and tawdry looking “War on Terror” was revitalized, and the Supreme Court, through its inaction, decided that judges in the D.C. Circuit Court — who have publicly criticized the Supreme Court for incompetence — should continue to decide detainee policy at Guantánamo.

What this means, as I will spell out in detail below, is that, having gutted habeas corpus of all meaning in rulings over the last 15 months, the D.C. Circuit Court will be allowed to continue deciding that every prisoner still held at Guantánamo should — and very possibly will — be held forever, regardless of whether they were cleared for release by other judges, or by the President’s own interagency Guantánamo Review Task Force.

In last Monday’s first capitulation, the Obama administration — via Attorney General Eric Holder — abandoned a 16-month promise to try alleged 9/11 mastermind Khalid Sheikh Mohammed and four others in federal court, capitulating to Republican pressure — and a ban on moving prisoners to the US mainland to face trials, which was unconstitutionally implemented by Congress in December — by announcing that the men would, instead, be tried by Military Commission at Guantánamo.

The administration therefore fulfilled a key Republican aim — ensuring that the highest-profile prisoners in Bush’s “War on Terror” would be regarded as “warriors” rather than as criminals — and, in effect, turned the clock back to 2008, when the Bush administration held three pre-trial hearings in the Military Commissions of these five men.

Admittedly, the Obama administration bears the ultimate responsibility, having revived the Military Commissions in the summer of 2009, when senior officials could have consigned the reviled system to the grave of failed legal novelties. In addition, it may all backfire, as the Commissions are built on dubious legal sands, and the proceedings tend to be full of holes through which determined defendants like Khalid Sheikh Mohammed will be able to mock America more successfully than in federal court. However, the end result is that Republicans — and, should they wish, George W. Bush and Dick Cheney — will be able to claim that they were right all along.

On the judicial front, the Supreme Court has ducked Guantánamo since its last major intervention, in Boumediene v. Bush, in June 2008, when the justices ruled that the prisoners had constitutionally guaranteed habeas corpus rights, and also ruled that Congress had acted unconstitutionally by attempting to strip the prisoners of those rights in the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006.

Although this was an enormously important decision, reinforcing the unusual but crucial ruling in June 2004, in Rasul v. Bush, that the prisoners, though seized in wartime, had habeas rights because the Bush administration had cut off all mechanisms whereby innocent men seized by mistake could prove their innocence, it also sowed the seeds of last Monday’s disaster.

Essentially, the Supreme Court refused to provide a description of an “enemy combatant,” leaving it to the lower courts to decide that, and although the District Court in Washington D.C. did a fine job of coming up with its own definition, and applying it in practice — and tweaking it along the way — in 41 cases from October 2008 to December 2009, for the last 15 months judges in the D.C. Circuit Court (the court of appeals) have fought back, with a number of notoriously right-wing judges refusing to accept the District Court’s generally accepted decision that some sort of involvement in the command structure of al-Qaeda and/or the Taliban is necessary to deny their habeas petitions.

Beginning with Al-Bihani v. Obama in January 2010, in which D.C. Circuit Court judges argued for no limit on the President’s wartime powers in the case of a Yemeni cook for Arab forces supporting the Taliban in Afghanistan, other panels have attacked the “command structure” argument, insisting that being “part of” al-Qaeda and/or the Taliban is sufficient to justify ongoing detention for life, and proceeding to attack the already low threshold required of the government — that it demonstrates its case by a “preponderance of the evidence,” rather than “beyond any reasonable doubt.”

What the D.C. Circuit Court desires, as judges have occasionally spelled out, is for the burden to be nothing more than “some evidence” — and that in a very open-ended way, as I explained in my last broadside directed at the Circuit Court. If they could, one suspects that the Circuit Court judges would simply return to the Combatant Status Review Tribunals at Guantánamo, held in 2004-05, which the Supreme Court in Boumediene found “insufficient.” In the CSRTs, the burden of proof was not on the government, but, outrageously, on the defendant, even through the prisoners in Guantánamo had no way of securing any evidence in their favor, or even of knowing what the government’s supposed case was against them.

In an attempt to overturn the Circuit Court’s dominance of all the arguments regarding the Guantánamo prisoners, a number of submissions have been made to the Supreme Court in recent months, and although these have all been turned down, as I mentioned above, it is worth analyzing what has been happening, in order to understand more thoroughly the dark forces that are now in control.

In an excellent editorial last month, the New York Times addressed the problem with the D.C. Circuit Court, focusing specifically on the court’s opposition to  attempts by the Uighurs — Muslims from China’s oppressed Xinjiang province, seized by mistake, who won their habeas petition in October 2008 — to be allowed to live in the US.

Although the judge in their case, Judge Ricardo Urbina, ordered that they be brought to live in the US in October 2008, the Bush administration — and then the Obama administration — appealed, and in February 2009, long before the Circuit Court specifically began meddling in reversing successful habeas opinions, or unilaterally calling for an expansion of executive power — the Circuit Court agreed. Under Judge A. Raymond Randolph — notorious for endorsing every opinion about Guantánamo under President Bush that was subsequently overturned by the Supreme Court — a panel of judges ruled, as the Times described it, that Judge Urbina “lacked authority to free them in the United States because the ‘political branches’ have ‘exclusive power’ to decide which non-Americans can enter this country.”

Since then, although 12 of the 17 Uighurs have accepted new homes (in Bermuda, Palau and Switzerland), the Court has continued to resist claims made by the other five, who turned down offers to rehouse them made by Palau and at least one other unidentified country, because they did not trust those countries to protect them from the Chinese government.

Appalled by this decision, and by all the other developments in the last 15 months, the Times boldly pointed out that the D.C. Circuit Court “has dramatically restricted the Boumediene ruling,” and that, “In its hands, habeas is no longer a remedy for the problem the Boumediene majority called ‘arbitrary and unlawful restraint.’”

The editors proceeded to note that, in the Uighurs’ brief to the Supreme Court, challenging this decision (as the latest instalment of a case that has bounced around the courts for the last two years), their lawyers point out explicitly that the only constant factor in this case is “the court of appeals’ refusal to apply, or even acknowledge” the Boumediene ruling, and the editors also provided an eye-opening glimpse into the partisan nature of Judge Randolph’s opposition to the decisions regarding Guantánamo that have come before him, explaining:

Judge Randolph … wrote the opinion for the District of Columbia Circuit that the Supreme Court overturned in Boumediene. In a speech called “The Guantánamo Mess” last fall, he said that the justices were wrong to do so and all but expressed contempt for the holding. As the basis for the speech’s title, he compared the justices who reached it to characters in The Great Gatsby. “They were careless people,” he read. “They smashed things up … and let other people clean up the mess they had made.”

This contemptuous approach to the Supreme Court’s ruling prompted the New York Times to respond:

In Kiyemba [the Uighurs' case] and related cases, however, it is Judge Randolph and others on the District of Columbia Circuit who are making the mess. Respected lawyers say they are subverting the Supreme Court and American justice. Of 140 challenging their detentions in the face of this hostility, dozens who should have been freed will likely remain in prison.

In conclusion, the Times sought to remind the Supreme Court that “Alexander Hamilton called ‘arbitrary imprisonments’ by the executive ‘the favorite and most formidable instruments of tyranny,’” and that, in Boumediene, Justice Anthony Kennedy “stressed that habeas is less about detainees’ rights, important as they are, than about the vital judicial power to check undue use of executive power,” adding that this is important because the Circuit Court “has all but nullified that view of judicial power and responsibility backed by Justice Kennedy and the court majority,” and that the Supreme Court should now remind the Circuit Court “which one leads the federal judicial system and which has a solemn duty to follow.”

If the Times‘ editors made a valid case — and I believe they did — then it was the Supreme Court who failed to take their responsibilities on board, because last Monday they refused to consider the Uighurs’ case, and also turned down three other habeas-related submissions — challenging the government’s use of hearsay, the “preponderance of evidence” standard, and the sweeping executive powers endorsed in Al-Bihani.

To date, analysts have suggested that the Supreme Court might have been unwilling to revisit Guantánamo, because Elena Kagan, who replaced Justice John Paul Stevens, served as Obama’s Solicitor General working on Guantánamo issues, and would have had to recuse herself, leaving the court, in all likelihood, split 4-4 on any Guantánamo cases. However, as SCOTUSblog noted, Kagan did not recuse herself from two of the cases turned down last Monday, suggesting that the problem is actually that no one amongst the justices wants to step into the role taken by Justice Stevens, who, from 2004 to 2008, “had been the Court’s leader in asserting a strong role for the Justices in overseeing how the law of detention had developed.”

Along with the Obama administration’s capitulation to Republican demands on Guantánamo, the fact that the Supreme Court, under Obama, has also ended up more right-wing than it was under Bush, when it comes to detention issues in the “War on Terror,” appears to be some sort of cruel joke.

How on earth have we ended up in a situation whereby, as SCOTUSblog explained, the poisonous figure of Judge Randolph has been left in a position in which the Supreme Court’s denial of review last Monday “might … count as a personal triumph” for him — and, thereby, a tacit admission that he was correct to regard Boumediene as a “mess” that requires cleaning up? Was Justice Stevens the only reason that the US justice system did not thoroughly endorse arbitrary detention as official policy under George W. Bush?

Originally published on the website of the Future of Freedom Foundation.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

Treated as punchbags without rights when first picked up, mostly in Afghanistan and Pakistan in the wake of the 9/11 attacks and the US-led invasion of Afghanistan, the 172 men still held at Guantánamo are still treated with scorn by the administration of Barack Obama, the standard bearer of “hope” and “change,” who promised to close Guantánamo and to do away with “the dark halls of Abu Ghraib and the detention cells of Guantánamo, [where] we have compromised our most precious values.” Instead, however, Obama has revealed himself to be nothing more than a hollow man whose ability to read from an autocue made him look caring, clever and capable when that was exactly the antidote we needed to eight years of Bush and Cheney.

Today, the reason for despair is that on Tuesday the D.C. Circuit Court reversed a ruling made last February by Judge Henry H. Kennedy Jr. of the District Court, in the case of Uthman Abdul Rahim Mohammed Uthman, a Yemeni held at Guantánamo without charge or trial since the prison opened in January 2002. Last February, after examining all the government’s supposed evidence against Uthman, Judge Kennedy ruled that, although the government had presented what appeared to be a coherent timeline of events that was typical for young men from the Gulf, recruited to visit a training camp in Afghanistan to learn to fight for the Taliban against the Northern Alliance, none of the government’s supposed evidence proving Uthman’s presence in guest houses, at a training camp, and in the Tora Bora mountains (where a showdown took place in December 2001 between remnants of al-Qaeda and the Taliban, and Afghan forces recruited to fight for the Americans) was reliable.

The reason for this, Judge Kennedy concluded, was because the government’s supposed evidence consisted of statements produced by other prisoners who had been tortured, and whose testimony was therefore unreliable, as well as other witnesses whose statements were also considered to be untrustworthy.

This could have been the end of the story, and Uthman could have been released, were it not for the fact that he is a Yemeni, and the month before he won his petition, President Obama bowed to hysteria following the announcement that Umar Farouk Abdulmutallab, the failed Christmas Day plane bomber, had been recruited in Yemen by announcing an immediate, open-ended moratorium on releasing any Yemenis from Guantánamo.

The fact that this moratorium was unjustifiable, consigning prisoners cleared for release by a US court, or by Obama’s own interagency Guantánamo Review Task Force, to indefinite detention on the basis of “guilt by nationality,” appeared to trouble no one, and, similarly, no one blinked when every Yemeni who won his habeas corpus petition — with one heroic exception — subsequently had his successful petition appealed.

This was in spite of the fact that it was obvious to anyone who was reasonably sentient that the main reason for doing so was to avoid having to try to persuade Congress that an exception should be made to the moratorium, which, very clearly, was actually intended to function as a permanent obstacle to the release of any Yemeni, the kind of legally and morally dubious device that President Bush also favored, although his chosen vehicle was the executive order.

The noble exception, by the way, was Mohammed Hassan Odaini, a student who had been seized while staying the night wth other students at their universtiy dorm in Faisalabad, Pakistan, in March 2002. Many of the other students staying in the dorm are still held, but Odaini was lucky because a judge reached the point where he was satisfied that he could make a ruling on his habeas petition, and forcefully explained that the US government had no reason for having deprived Odaini of eight years of his life, when intelligence officials knew, almost from the moment of his capture, that he was an innocent man.

It also helped that his case was picked up by the Washington Post, which ran an editorial entitled, Meet one Gitmo inmate who can’t be described as ‘the worst of the worst.’ At this point, he became a kind of minor celebrity victim, and the administration conceded that it wouldn’t dare appeal, although officials still made a concession to outrageousness by explaining, straight-faced, that they still would have challenged his release if they hadn’t discovered that he was from a good family. “People [in the administration] were comfortable with this,” an anonymous official told the Washington Post, “because of the guy’s background, his family and where he comes from in Yemen.”

For Uthman Abdul Rahim Mohammed Uthman — not as well-connected as Mohammed Hassan Odaini — all that awaited him was a date with the D.C. Circuit Court that was bound to result in Judge Kennedy’s ruling being reversed, and Uthman himself being consigned to indefinite detention at Guantánamo for the rest of his life.

The reason I state this with such confidence is that, since they first began considering Guantánamo habeas appeals last January, the judges of the D.C. Circuit Court — and, in particular, Judges A. Raymond Randolph, Brett M. Kavanaugh and Janice Rogers Brown — have generally functioned as though possessed by the spirit of George W. Bush and Dick Cheney, sedating the spirit of justice and taking revenge on the Supreme Court, which granted constitutionally guaranteed habeas corpus rights to the Guantánamo prisoners in June 2008.

Of these, Judge Randolph is the most notorious, having endorsed every piece of Guantánamo legislation that came his way under the Bush administration, even though all his rulings were subsequently reveresed by the Supreme Court, but all of them (plus others, in various combinations) have almost entirely guaranteed success for the government’s appeals in the habeas legislation, as I explained in my articles, Guantánamo and Habeas Corpus: Prisoners Win 3 out of 4 Cases, But Lose 5 out of 6 in Court of Appeals (Part One), Guantánamo and Habeas Corpus: Prisoners Win 3 out of 4 Cases, But Lose 5 out of 6 in Court of Appeals (Part Two) and Habeas Hell: How the Great Writ Was Gutted at Guantánamo.

In challenging, reversing and vacating the District Court opinions, the D.C.Circuit Court has issued a contentious opinion about unfettered executive power, which claimed greater wartime powers for the government than senior officials wanted, wondered — in an opinion by Judge Randolph — why any kind of test was required for the quality of the government’s evidence in cases related to terrorism, and, most damagingly for the prisoners, decided that the involvement with al-Qaeda and/or the Taliban that is required to justify detention is not, as the District Court judges decided, limited to some sort of involvement in the command structure of the organizations (intended to demonstrate important indicators like the requirement to take orders), but is, instead, the much more open-ended requirement that those under consideration are “part of” al-Qaeda and/or the Taliban.

On Tuesday, demonstrating quite how open-ended this description is, Judge Kavanaugh, who wrote the judges’ opinion, declared, as ProPublica stated, “that the government doesn’t need direct evidence that a detainee fought for or was a member of al-Qaeda in order to justify a detention.” ProPublica added that the court “determined that circumstantial evidence, such as a detainee being in the same location as other al-Qaeda members, is enough to meet the standard to hold a prisoner without charge.”

In the ruling (PDF), the judges wrote, “Uthman’s account piles coincidence upon coincidence upon coincidence … it remains possible that Uthman was innocently going about his business and just happened to show up in a variety of extraordinary places — a kind of Forrest Gump in the war against al-Qaeda. But Uthman’s account at best strains credulity, and the far more likely explanation for the plethora of damning circumstantial evidence is that he was part of al-Qaeda.”

Jonathan Hafetz, a professor at Seton Hall Law School, who has represented several Guantánamo prisoners including Mohamedou Ould Salahi, who, last November, had his successful petition vacated and sent back to the District Court to reconsider, complained that the Circuit Court’s ruling “significantly favors the government in ways the Supreme Court did not intend when it granted detainees the right to challenge detentions.”

“The Uthman case cements the trend in the D.C. Circuit’s decisions toward a broad and malleable definition of who can be considered ‘part of’ al-Qaeda, combined with a highly deferential view of the government’s interpretation of the facts,” Hafetz said. “In many cases, the result is indefinite detention based on suspicion or assumptions about a detainee’s behavior.”

He added that the ruling is not only dismissive of the considered approach taken by the District Court, but is also dismissive of the intent of the Supreme Court. The Supreme Court, he said, “mandated a meaningful judicial process in which the government would be called to account; Uthman says judges should not require much in the way of an answer.”

The other problem for Uthman, and for the majoriity of the other prisoners who have lost their habeas petitions (22 out of 59 cases in total), is that all this legal maneuvering fails to address a fundamental problem with the habeas petitions that no one has ever wanted to deal with — the fact that the habeas petitions are specifically to decide whether the government is able to demonstrate, by a preponderance of the evidence, that the prisoners in question were involved with al-Qaeda and/or the Taliban, without making any distinction between them, even though one is a terrorist group, and the other was the government of Afghanistan at the time of the 9/11 attacks.

This refusal to distinguish between two decidedly different groups — despite the limited crossover between them, which also extended to a failure to realize that those who trained in camps associated wth al-Qaeda were generally only involved in what might be called al-Qaeda’s military wing, rather than its involvement with international terrorism — is enshrined in the founding document of the “War on Terror,” the Authorization for Use of Military Force. Passed by Congress the week after the 9/11 attacks, the AUMF authorizes the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001,” or those who harbored them.

Interpreted by the Supreme Court, in Hamdi v. Rumsfeld, in June 2004, as “clearly and unmistakably” authorizing the detention of individuals, the AUMF therefore provides the rationale for holding prisoners neither as criminal suspects, to be put forward for trials, nor as prisoners of war protected by the Geneva Conventions, but as what Bush called “illegal enemy combatants,” and it crafts the fiction, maintained ever since, that terrorists and soldiers are somehow one and the same, when, if those involved in the habeas legislation were allowed to express an honest and  unguarded opinion about many of the cases, I’m sure that many of them would concede that terrorists are criminals, whereas those involved in the Taliban’s military conflict with the Northern Alliance, which morphed, after 9/11, into a global war against the US, were nothing more than soldiers, and should have been held as such according to the Geneva Conventions.

Time and again, however — and Uthman is just the latest example — these foot soldiers have been losing petitions and being slung back into Guantánamo as though they were convicted terrorists, even when they are no such thing, and, in two cases, were not even foot soldiers but a cook and a medic. Sadly, few people realize that this is what has been happening, as the mainstream media in the US has done little to interest the American public in the prisoners’ habeas corpus petitions.

However, as with my imaginary scenario with the judges, if it were possible to make a cross-section of the American public sit down for a few hours and have spelled out to them the stories of those who have been losing their habeas petitions and who may now spend the rest of their lives in Guantánamo, I’m sure that they too would realize that there’s an enormous difference between someone involved in a plot to kill hundreds or thousands of civilians on the US mainland or anywhere else in the world, and someone who attended a training camp, and may, in some way or another, have engaged in military conflict with the Northern Alliance and/or the US military in Afghanistan.

Nearly ten years after the 9/11 attacks, the time to sort out the difference between terrorists and soldiers is surely long overdue, so that people like Uthman are treated with justice, rather than the lingering effects of the hyperbole that typefied the Bush administration’s “War on Terror.” Moroever, it is also important for America itself to stop pretending that there is a magical third category of prisoner on whose heads can be poured all the pain and loss of 9/11. Prisoners are either criminal suspects, to be put on trial, or soldiers, seized in wartime, to be held as prisoners of war and protected by the Geneva Conventions.

Note: For details of all the habeas cases ruled on in the US courts, see the dedicated page,Guantánamo Habeas Results: The Definitive List, which is regularly updated when new developments are announced.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

As I explained in a recent article, George W. Bush, War Criminal, Is Not Welcome in Europe, Bush subsequently cancelled his visit. However, as Vince Warren of the Center for Constitutonal Rights explained in the Huffington Post:

Swiss law requires the presence of an alleged torturer on Swiss soil before a preliminary investigation can be open. Because Bush canceled, the complaints could not be filed as the basis for legal jurisdiction no longer existed. However, the fact that Bush authorized torture remains … In the long run, ducking a charge of torture is not as easy as ducking a shoe thrown at a press conference.

In my article, I stated that “the fact that the torturer-in-chief has been made unwelcome in Europe — and, in theory, anywhere outside the US –  is heartening news indeed,” and this remains the case. In the hope of keeping the story alive — and providing the Preliminary Bush Torture Indictment in an accessible form, I’ve divided the original PDF into two HTML documents, and am cross-posting the first part below. The second part will follow soon. Please not that CCR will amend the indictment as new information comes to light (as it undoubtedly will, given how much of the US torture story is still hidden), and please also note that the original contains detailed footnotes, which I have not attempted to replicate here, where I have, instead, inserted a number of important hyperlinks.

PRELIMINARY “INDICTMENT FOR TORTURE”: GEORGE W. BUSH
BROUGHT PURSUANT TO THE CONVENTION AGAINST TORTURE*

* The present document is a modified version of an individual criminal complaint prepared for submission against George W. BUSH in anticipation of his visit to Geneva, Switzerland on 12 February 2011. The individual criminal complaint brought on behalf of an individual plaintiff was not filed, as planned, on 7 February 2011 because of the announcement, on the eve of the filing, that BUSH cancelled his trip. Factual details regarding that visit, as a basis for establishing BUSH’s presence in Switzerland and the inclusion of analysis of Swiss law is reflective of the origins of this document. This document is not intended to serve as a comprehensive presentation of all evidence against BUSH for torture; rather, it presents the fundamental aspects of the case against him, and a preliminary legal analysis of liability for torture, and a response to certain anticipated defenses. This document will be updated and modified as developments warrant.

I. FACTUAL BACKGROUND

A. George W. BUSH

1. George W. BUSH was born on 6 July 1946, in New Haven, Connecticut, United States. From 20 January 2001- 20 January 2009, BUSH served as president of the United States of America and Commander in Chief of the United States Armed Forces. Pursuant to Article II of the United States Constitution, executive power was vested in BUSH, as president of the United States. Upon assuming office, BUSH took an oath to “preserve, protect and defend” the Constitution of the United States.

2. In his capacity as president of the United States of America and Commander in Chief, BUSH had authority over the agencies of the United States government involved in the torture program, including but not limited to, the Central Intelligence Agency (CIA), the Department of Defense (DOD), the Department of Justice (DOJ), the Department of Homeland Security (DHS), the Department of State (DOS), the Federal Bureau of Investigation (FBI) as well as over the White House and Office of the Vice President.

3. BUSH chaired the National Security Council (NSC), which advises and assists the president on national security and foreign policies, and serves as the president’s principal arm for coordinating these policies among various government agencies.

4. It has been publicly and widely reported that BUSH will be present in Geneva to take part as the guest of honor in a charity evening organized by the Keren Hayessod foundation, set to take place at the Hôtel President Wilson. His presence is announced for Saturday, 12 February 2011.

B. Overview of Detention Policies and Torture Program

5. On 14 September 2001, BUSH issued the “Declaration of National Emergency by reason of Certain Terrorist Attacks,” following the September 11th terrorist attacks.

6. On 17 September 2001, BUSH issued a 12-page directive (known as a “memorandum of notification”) that went to the Director of the CIA and members of the National Security Council, in which BUSH authorized the CIA to capture suspected terrorists and members of Al-Qaeda, and to create detention facilities outside the United States where suspects can be held and interrogated. BUSH‘s directive marked the official launching of the CIA program by vesting the agency with unprecedented power. The document was  “a means of granting the CIA important new competences relating to its covert actions: new choices it could make and new ways it could respond if confronted with Al-Qaeda targets in the field.”

7. According to Swiss Senator Dick Marty‘s 2007 Report to the Council of Europe [PDF], BUSH had been personally involved in the conception, discussion, and formulation of this new strategy. The 17 September 2001 directive, referred to by Marty as a “Presidential Finding,” is said to have “create[d] paramilitary teams to hunt, capture, detain, or kill designated terrorists almost anywhere in the world.” Marty‘s Report shed further light on what the directive was intended to achieve:

Our team has spoken with several American officials who have seen the text of the Presidential Finding and participated in the operations that put it into action. Two particularly striking observations have emerged from these discussions. First, by putting “a lot of stock in Special Activities” the Finding “redefined the role of the Agency,” even in the eyes of some of its own, more conservative senior officials. Second, the “really broad, not specific” scope of the covert actions authorised in the Finding meant that the CIA was instantly granted enough room for manoeuvre to design a secret detentions programme overseas.

8. The International Committee of the Red Cross (“ICRC”) was refused access to detainees held in the CIA program. As revealed through a 2007 ICRC report [PDF], the ICRC made repeated requests to the United States to grant it access to the detainees generally, including specific detainees whom the ICRC believed to be, and were in fact, held by the CIA in secret detention sites outside of the United States.

9. On 7 October 2001, BUSH announced that, on his orders, “the United States military has begun strikes against Al-Qaeda terrorist training camps and military installations of the Taliban regime in Afghanistan.”

10. On 13 November 2001, BUSH authorized the detention of alleged terrorists and subsequent trial by military commissions, which he ordered would not be subject to the principles of law and rules of evidence applicable to trials held in U.S. federal courts. In this order, BUSH vested himself with the power to detain and try by military commission a broad category of persons believed to be, or have been, linked to the acts of international terrorism. In this order, BUSH further vested his Secretary of Defense, Donald Rumsfeld, with certain powers related to the detention of such persons and the establishment of military commissions. BUSH emphasized that tasking his subordinate, Rumsfeld, with these responsibilities related to detention policies “shall not be construed to limit the authority of the President as Commander in Chief of the Armed Forces [...].” Finally, through this order, BUSH purported to strip detainees of the power to seek a remedy not only in U.S. federal courts but also in “any court of any foreign nation, or any international tribunal.”

11. By late 2001, BUSH was planning for the detention of individuals at the U.S. Naval Station at Guantánamo Bay, Cuba (Guantánamo) as evidenced by memoranda [PDF] addressing the question of whether the U.S. federal courts would have jurisdiction of individuals detained in Guantánamo — a prospect which BUSH sought to foreclose through his 13 November 2001 Order.

12. On 11 January 2002, the first detainees arrived in Guantánamo Bay, Cuba.

13. On 18 January 2002, BUSH decided that the Third Geneva Convention did not apply to the conflict with al Qaeda or members of the Taliban, and that they would not receive the protections afforded to prisoners of war. This decision was taken upon consideration of advice [PDF] from John Yoo and Robert Delahunty, both of the Department of Justice (“DOJ”) Office of Legal Counsel (“OLC”), and the additional oral advice of his Chief White House Counsel, Alberto Gonzales [PDF].

14. On 19 January 2002, Secretary of Defense Rumsfeld transmitted BUSH‘s determination regarding the status of the Taliban and al Qaeda to combatant commanders, along with the order that the commanders should treat such individuals in a manner “consistent” with the “principles” of the Geneva Conventions only “to the extent appropriate and consistent with military necessity” [PDF]. The combatant commanders were ordered to transmit the content of this memo to the subordinate commanders, including commander of Joint Task Force (JTF) 160 responsible for Guantánamo.

15. On 25 January 2002, the ICRC made its first visit to the detention facility in Guantánamo Bay, Cuba.

16. On 27 January 2002, BUSH‘s Secretary of Defense, Rumsfeld, visited the U.S. detention facility at Guantánamo.

17. On 7 February 2002, pursuant to his “authority as Commander-in-Chief and Chief Executive of the United States,” BUSH issued a memorandum stating that the Geneva Conventions do not apply to the conflict with Al-Qaeda, and that Common Article 3 of the Geneva Conventions did not apply to either Al-Qaeda or Taliban detainees [PDF]. BUSH called only for detainees to be treated humanely and “to the extent appropriate and consistent with military necessity, in a manner consistent with principles of Geneva,” as a matter of policy — not law. In so doing, BUSH rejected Secretary of State Colin Powell‘s calls to reconsider and reverse his 18 January 2002 determination regarding the application of the Geneva Conventions, and disregarded the advice of the Legal Advisor to the State Department that the non-application of the Geneva Conventions to the conflict in Afghanistan was inconsistent with plain language of the Geneva Conventions and unvaried practice of the United States in the fifty years since becoming a party to the Conventions [PDF].

18. In March 2002, the first “high value detainee” Abu Zubaydah was detained and interrogated by the CIA. His detention “accelerated” the development of the CIA interrogation program [PDF]. In his memoir DECISION POINTS, BUSH explained that the decision was taken to transfer Abu Zubaydah to CIA custody and to “move him to a secure location in another country where the Agency would have total control over his environment.”

19. Through, among other means, discussions among members of the NSC, which BUSH chaired, BUSH was fully briefed on, and approved as a matter of policy, the indefinite detention of individuals held by the U.S. government, and specifically, the CIA.

20. The CIA interrogation program sanctioned by BUSH included interrogation techniques that were directly inspired by the “Survival Evasion Resistance Escape (SERE)” training program, in which U.S. military members were exposed to, and taught how to resist, interrogation techniques used by enemy forces that did not adhere to the Geneva Conventions. As detailed in the CIA IG Report, the U.S. employed these techniques, which included waterboarding; confining detainees in a dark box for up to 18 hours at a time and possibly with an insect placed in the confinement box; up to 11 days of sleep deprivation; facial hold or facial slap; “walling,” which consists of pulling a detainee forward and then pushing him back quickly against “a flexible false wall so that his shoulder blades hit the wall;” and use of stress positions, on CIA detainees.

21. As described by the ICRC, the CIA detention program “included transfers of detainees to multiple locations, maintenance of the detainees in continuous solitary confinement and incommunicado detention throughout the entire period of their undisclosed detention, and the infliction of further ill-treatment through the use of various methods either individually or in combination, in addition to the deprivation of other basic material requirements.” The UN Joint Study on secret detentions [PDF, also see here and here] noted that detainees had been held in Afghanistan, Thailand, Poland and Romania, among other locations. The ICRC described the fourteen individuals previously held as part of the CIA detention program, whom BUSH transfered to detention at Guantánamo, and which BUSH announced in September 2006, as “missing persons.”

22. The ICRC Detainee CIA Report further explained that the program “was clearly designed to undermine human dignity and to create a sense of futility by inducing, in many cases, severe physical and mental pain and suffering, with the aim of obtaining compliance and extracting information, resulting in exhaustion, depersonalisation and dehumanisation.”

23. The interrogation methods used on detainees were euphemistically qualified by the U.S. government as “enhanced,” but the United Nations and the ICRC found that they rose to the level of torture and cruel, inhuman or degrading treatment. The ICRC unequivocally concluded that, upon the information gathered from interviews with the former CIA detainees, conducted after their transfer to Guantánamo:

The allegations of ill-treatment of the detainees indicate that, in many cases, the ill-treatment to which they were subjected while held in the CIA program, either singly or in combination, constituted torture. In addition, many other elements of the ill treatment, either singly or in combination, constituted cruel inhuman or degrading treatment.

24. The ICRC concluded that the CIA program‘s interrogation techniques consisted of: suffocation by water — or waterboarding; prolonged stress standing position while arms are shackled above the head; beatings by use of a collar held around the detainees neck and used to forcefully bang the head and body against the wall; beating and kicking; confinement in a box; forced nudity for periods ranging from several weeks to several months; sleep deprivation through use of forced stress positions (standing or sitting), cold water and use of repetitive loud noise or music; exposure to cold temperature; prolonged shackling; threats of ill-treatment to the detainee and/or his family, forced shaving; and deprivation or restricted provision of solid food.

25. The UN Joint Study found that the CIA had taken 94 detainees into custody and had employed “enhanced interrogation techniques to varying degrees in the interrogation of 28 of those detainees.”

26.The CIA interrogations of Abu Zubaydah were videotaped and those videotapes were sent to CIA headquarters. In total there were 92 videotapes, 12 of which included application of so-called “enhanced interrogation techniques.” The videotapes included evidence of torture, including the waterboarding of Abu Zubaydah 83 times. Those videotapes were destroyed by the CIA in November 2005. Abu Zubaydah described to the ICRC his waterboarding:

I was put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position. The pressure of the straps on my wounds caused severe pain. I vomited. The bed was then again lowered to a horizontal position and the same torture carried out with the black cloth over my face and water poured on from a bottle. On this occasion my head was in a more backward, downwards position and the water was poured on for a longer time. I struggled without success to breathe. I thought I was going to die. I lost control of my urine. Since then I still lose control of my urine when under stress.

27. In November 2002, another CIA detainee held in a secret site, [Abd Al-Rahim] Al-Nashiri, was arrested. He was waterboarded twice in November 2002. Although the CIA IG Report is heavily redacted when discussing the interrogation of Al-Nashiri, it confirms that CIA HQ authorized the use of “enhanced interrogation techniques” against him. As discussed below, BUSH authorized and condoned the waterboarding of Al-Nashiri.

28. A third CIA “high value detainee,” Khalid Sheik Mohammed, was subjected to waterboarding 183 times. In his recent memoir, BUSH specifically acknowledged that, upon request by CIA Director George Tenet, he authorized the use of “enhanced interrogation techniques” on Khalid Sheik Mohammed, including waterboarding. In discussing “haul[ing] out their target,” following a raid on the apartment complex where Khalid Sheik Mohammed was, and the CIA interrogation that followed, BUSH writes in DECISION POINTS:

I was relieved to have one of Al-Qaeda‘s senior leaders off the battlefield. But my relief did not last long. [CIA] Agents searching Khalid Sheik Mohammed‘s compound discovered what one official later called a “mother lode” of valuable intelligence. Khalid Sheik Mohammed was obviously planning more attacks, It didn‘t sound like he was willing to give us any information about them. “I‘ll talk to you,” he said, “after I get to New York and see my lawyer.”

George Tenet asked if he had permission to use enhanced interrogation techniques, including waterboarding, on Khalid Sheik Mohammed. I thought about meeting Danny Pearl‘s widow, who was pregnant with his son when he was murdered. I thought about the 2,973 people stolen from their families by al Qaeda on 9/11. And I thought about my duty to protect the country from another act of terror.

“Damn right,” I said.

Other so-called “enhanced interrogation techniques” used upon Khalid Sheik Mohammed were threats to kill his children and the deprivation of sleep for 180 hours.

29. In a speech given on 6 September 2006, BUSH “officially acknowledged the existence of a CIA terrorist detention and interrogation program.” Defendant BUSH stated that “our government has changed its policies,” and admitted to authorizing an “alternative set of procedures” on persons detained “secretly” and “outside the United States” in a program operated by the CIA, while refusing to specify what techniques were authorized. BUSH also discussed another individual held in this program, Abu Zubaydah. As discussed above, Abu Zubaydah was subjected to acts of torture, including having been waterboarded at least 83 times. Notably, while BUSH stated that there were no detainees held in the CIA detention program as of 6 September 2006, he explicitly reserved the right to place, again, persons in CIA detention in secret sites beyond the reach of the law.

30. In his 6 September 2006 speech, BUSH also expressed fear that members of the U.S. military involved in torture might be prosecuted for war crimes: “some believe our military and intelligence personnel involved in capturing and questioning terrorists could now be at risk of prosecution under the War Crimes Act — simply for doing their jobs in a thorough and professional way.” He emphasized that he would not allow this to happen and asked Congress to prevent detainees from pursuing civil claims against U.S. military personnel for violations of the Geneva Conventions. Through these measures, BUSH sought to provide complete immunity from justice for any member of the U.S. military who tortured a detainee.

31. Having met with the fourteen “high value detainees” held in the CIA program following their transfer from secret sites to Guantánamo in September 2006, the ICRC concluded that it “clearly considers that the allegations of the fourteen include descriptions of treatment and interrogation techniques – singly or in combination – that amounted to torture and/or cruel, inhuman or degrading treatment.”

32. On 11 June 2007, the Parliamentary Assembly of the Council of Europe, of which Switzerland is a member state, published an investigative report authored by Dick Marty on secret detentions and illegal transfers of “high value detainees” by the CIA involving Council of Europe member states. The report confirmed the existence of secret CIA sites in Poland and Romania and found that the interrogation techniques used on detainees were “tantamount to torture.” On 27 June 2007, the Parliamentary Assembly, adopted a resolution in which it unequivocally stated:

The detainees were subjected to inhuman and degrading treatment, which was sometimes protracted. Certain “enhanced” interrogation methods used fulfill the definition of torture and inhuman and degrading treatment in Article 3 of the European Convention on Human Rights (ETS No. 5) and the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

33. In March 2008, BUSH vetoed legislation that would have banned the CIA from using “enhanced interrogation techniques,” including waterboarding, saying it “would take away one of the most valuable tools on the war on terror.”

34. In addition to detainees in the CIA detention program, these SERE-inspired “interrogation techniques” were also used against Mohammed al-Qahtani, a detainee at Guantánamo who was subjected to a prolonged, aggressive interrogation that violated international law, known as the “First Special Interrogation Plan” [PDF]. This interrogation plan, which began on 23 November 2002 and ended 16 January 2003, included 48 days of severe sleep deprivation and 20-hour interrogations, forced nudity, sexual humiliation, religious humiliation, dehumanizing treatment, the use of physical force against him, prolonged stress positions, prolonged sensory overstimulation, and threats with military dogs. These techniques were later widely acknowledged as torture. Indeed, the former convening office of the military commissions at Guantánamo, Susan Crawford, declared that she could not bring charges against Mr. al-Qahtani due to the torture inflicted on him: “we tortured al-Qahtani. … His treatment met the legal definition of torture. And that’s why I did not refer the case for prosecution.”

35. There have been a plethora of reports published that detail the draconian conditions, interrogation techniques and torture that took place at Guantánamo. Since as early as 2003, ICRC staff had expressed their deep concerns about the detention conditions in Guantánamo — indeed, published memoranda by U.S. officials from that period contain descriptions of meetings held between ICRC staff and Guantánamo commander Geoffrey Miller where concerns were raised [PDF]. In 2006, a group of five United Nations Special Rapporteurs published a joint Report on the situation of detainees at Guantánamo Bay. Crucially, this report came to the express conclusion that the interrogation techniques authorized and deployed by the Department of Defence, which operates under the command of BUSH, amounted to torture. Additionally, the UN experts also concluded inter alia that the force-feeding of detainees on hunger strike amounted to acts of torture [PDF]. A 2006 report by the United Nations Committee against Torture explicitly recommended that the U.S. “rescind any interrogation technique, including methods involving sexual humiliation, ‘water boarding‘, ’short shackling‘ and using dogs to induce fear, that constitute torture or cruel, inhuman or degrading treatment or punishment” [PDF]. A 2008 study by Physicians for Human Rights came to the conclusion that many techniques used in Guantánamo, especially those exercised over a longer period or in combination with other techniques, amounted to torture. Other studies have detailed how the BUSH administration, for example, forcibly deployed the drug mefloquine against detainees at Guantánamo in order to break their resistance to interrogation, despite the fact that it is well-known to have severe side effects and cause health problems [PDF]. In sum, there is widespread international acceptance — amongst intergovernmental bodies, international experts, academics and others — that the interrogation techniques applied in Guantánamo constitute torture under international law.

36. Finally, as is well-known, detainees in Iraq, including at the notorious Abu Ghraib prison, were also subjected to torture, cruel, inhuman and degrading treatment, and other serious violations of international law [Taguba PDF, Fay/Jones PDF, ICRC PDF, Schlesinger PDF].

C. Admissions and Findings that BUSH Authorized and Approved Torture

37. George W. BUSH has acknowledged on numerous occasions, and without any apparent remorse or consequence that he authorized and condoned the waterboarding of detainees held in U.S. custody, and that he was aware of and condoned the use of so-called “enhanced interrogation techniques.” BUSH‘s own admissions are consistent with, and confirm the findings of key reports, such as the CIA Inspector General‘s Report and the Marty Report.

38. The CIA IG Report confirms that BUSH was fully briefed on the specific “enhanced interrogation techniques” employed by the CIA, through consultations carried out in the summer of 2002 by the CIA with the NSC, which BUSH chaired, and with “senior Administration officials.” The CIA IG Report further confirms that in early 2003 the CIA continued to inform senior Administration officials, including the White House Counsel and others of the NSC, of the status of its Counterterrorism Program, because “[t]he Agency specifically wanted to ensure that these officials and the [Congressional] Committees continued to be aware of and approve CIA‘s actions.” Select members of the NSC were given a detailed briefing on the program by the CIA on 29 July 2003, and again on 16 September 2003: “none of those involved in these briefings expressed any reservations about the program.” BUSH met daily with, and was briefed by, his intelligence team.

39. In addition, BUSH played an active role in supporting the CIA secret detention program. Marty‘s Council of Europe investigation, for example, reported that BUSH welcomed to the Oval Office a high-level group of delegates from Bucharest to personally thank them to their contribution to the CIA program, as Romania hosted CIA black sites.

40. In an April 2008 interview with ABC News, BUSH acknowledged that he knew of the detailed discussions members of his national security team (the “Principals Committee” of the NSC) were having to define the interrogation techniques to be used by the CIA. When asked about the treatment of Khalid Sheik Mohammad, which included waterboarding, BUSH said: “I didn’t have any problem at all trying to find out what Khalid Sheikh Mohammed knew.”

41. BUSH released his memoir, DECISION POINTS, on 9 November 2010. In the book, BUSH states unequivocally that he authorized the torture, including waterboarding, of individuals held in U.S. custody. He further admits and acknowledges his role in selecting and approving the interrogation techniques used by the CIA: “I took a look at the list of techniques. There were two that I felt went too far, even if they were legal. I directed the CIA not to use them. Another technique was waterboarding, a process of simulated drowning. No doubt the procedure was tough [...] I would have preferred that we get the information another way. But the choice between security and values was real. Had I not authorized waterboarding on senior Al-Qaeda leaders, I would have had to accept a greater risk I was unwilling to take. [...] I approved the use of the interrogation techniques.”

42. BUSH details how at his direction, Department of Justice and Central Intelligence Agency lawyers conducted a legal review of the list of interrogation techniques proposed by the CIA. (Notably, the current U.S. Attorney General, Eric Holder, has unequivocally defined waterboarding as an act of torture.) Having received legal advice from government lawyers that it is permissible to waterboard detainees, BUSH admits that he responded “damn right” to the query of whether Khalid Sheik Mohammed could and should be waterboarded.

43. In an interview with Matt Lauer of NBC News on 8 November 2010, BUSH again admitted that he authorized acts of torture, including waterboarding:

BUSH: [...] one of the high value al Qaeda operatives was Khalid Sheik Mohammed, the chief operating officer of al Qaeda, ordered the attack on 9/11, and they say he’s got information. I said, “Find out what he knows.” And so I said to our team, “are the techniques legal?” And he says, “yes, they are,” and I said, “use ‘em.”
LAUER: Why is waterboarding legal, in your opinion?
BUSH: Because the lawyers said it was legal. He said it did not fall within the Anti-Torture Act. I’m not a lawyer, but you gotta trust the judgment of people around you and I do.
LAUER: You say it’s legal and “the lawyers told me.”
BUSH: Yeah.
LAUER: Critics say that you got the Justice Department to give you the legal guidance and the legal memos that you wanted.
BUSH: Well –
LAUER: Tom Kean, who was a former Republican co-chair of the 9/11 commission, said they got legal opinions they wanted from their own people.
BUSH: He obviously doesn’t know. I hope Mr. Kean reads the book. That’s why I’ve written the book. He can — they can draw whatever conclusion they want.

44. BUSH‘s admission of authorizing torture techniques was previously acknowledged by the second-highest ranking member of his administration, Vice President Dick Cheney. On 10 May 2009, former Vice President Cheney appeared on the CBS News television program Face the Nation. Asked what BUSH had known about torture methods, Cheney replied, “I certainly, yes, have every reason to believe he knew — he knew a great deal about the program. He basically authorized it. I mean, this was a presidential-level decision. And the decision went to the president. He signed off on it.”

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

Khalid El-Masri

In the relatively small number of US diplomatic cables released to date by WikiLeaks, from its cache of 251,287 documents, the most disturbing revelations concerning the “War on Terror” deal with the pressure that the Bush administration exerted on Germany in 2007, regarding the planned prosecution of 13 CIA agents involved in the rendition and torture of Khaled El-Masri, a German citizen who was seized as a result of mistaken identity.

Moreover, those cables reveal the pressure that the Obama administration exerted on the Spanish government in 2009, to derail a criminal investigation into the role played by six senior Bush administration lawyers in establishing the policies that governed the interrogation — and torture — of prisoners seized in the “War on Terror.”

Neither of these developments had been reported prior to the release of the cables by WikiLeaks, and they are therefore extremely significant in establishing how long Bush administration officials were involved in fending off torture investigations overseas, and how eagerly Obama administration officials took up this role.

Suppression of a torture inquiry in Germany

In the first cable, sent to Secretary of State Condoleezza Rice from Berlin on February 6, 2007, by John M. Koenig, the senior career diplomat at the US Embassy in Berlin, following discussions with Rolf Nikel, the deputy national security advisor for Germany, Koenig explained how he emphasized to Nikel that “issuance of international arrest warrants would have a negative impact on our bilateral relationship.” In addition, he “reminded Nikel of the repercussions to US-Italian bilateral relations in the wake of a similar move by Italian authorities last year” (in the case of Abu Omar, discussed below), and “pointed out that our intention was not to threaten Germany, but rather to urge that the German Government weigh carefully at every step of the way the implications for relations with the US.”

What makes this thinly-veiled threat seem particularly harsh is the fact that El-Masri is the clearest case of mistaken identity in the whole of the “War on Terror.” Confused with another man of the same name who had liaised with the 9/11 kidnappers, he was seized in Macedonia as he tried to enter the country on a vacation on New Year’s Eve, 2002, and was then sent to the CIA’s notorious “Salt Pit” prison in Afghanistan, where he was “repeatedly beaten, drugged, and subjected to a strange food regime that he supposed was part of an experiment that his captors were performing on him” (as described by Scott Horton of Harper’s), until the CIA realized it had made a mistake, and reluctantly set him free, dropping him off in Albania and obliging him to make his own way home, and to try to put together the pieces of his shattered life.

Suppression of a torture inquiry in Spain

The second cable, dated April 17, 2009, and sent from Madrid, explained how US officials had manipulated Spanish officials to suppress an investigation into six former Bush administration lawyers — Attorney General Alberto Gonzales, David Addington, former chief of staff and legal adviser to Vice President Dick Cheney, William Haynes, the Pentagon’s former general counsel, Douglas Feith, former undersecretary of defense for policy, Jay Bybee, the former head of the Justice Department’s Office of Legal Counsel, and John Yoo, a former official in the Office of Legal Counsel — for “creating a legal framework that allegedly permitted torture.” A Spanish human rights group had filed the complaint the month before, contending that Spain had a duty to open an investigation under its “universal jurisdiction” law.

The cable reveals how US officials immediately began sounding out Spanish officials, and how, on April 15, an apparently unlikely figure for the Obama administration to embrace — Sen. Mel Martinez (R-Fla.), who had recently been chairman of the Republican Party — attended a meeting between the US embassy’s charge d’affaires and the acting Spanish foreign minister, Angel Lossada, at which the Americans, repeating the same threatening language used in Germany in 2007, “underscored that the prosecutions would not be understood or accepted in the US and would have an enormous impact on the bilateral relationship” between Spain and the United States.

As the cable decribed it, “Lossada responded that the [Spanish government] recognized all of the complications presented by universal jurisdiction, but that the independence of the judiciary and the process must be respected.” However, he added that the government “would use all appropriate legal tools in the matter,” and that, although “it did not have much margin to operate,” would advise the Spanish Attorney General, Cándido Conde-Pumpido, that “the official administration position was that the [government] was ‘not in accord with the National Court.’”

The next day, Attorney General Conde-Pumpido “publicly stated that prosecutors will ‘undoubtedly’ not support [the] criminal complaint,” adding that he would “not support the criminal complaint because it is ‘fraudulent,’ and has been filed as a political statement to attack past [US government] policies.” He added that, “if there is evidence of criminal activity by [US government] officials, then a case should be filed in the United States.” In the cable, officials at the US embassy in Madrid congratulated themselves for their successful involvement in the case, noting that “Conde Pumpido’s public announcement follows outreach to [Spanish government] officials to raise [the US government's] deep concerns on the implications of this case.”

This was not quite the end of the story, as Conde-Pumpido had specifically taken aim at Investigating Judge Baltasar Garzón, “a world-renowned jurist,” who, as David Corn explained in an article for Mother Jones, “had initiated previous prosecutions of war crimes and had publicly said that former President George W. Bush ought to be tried for war crimes.” Garzón pressed ahead with the prosecution in September 2009, but when he ran into domestic problems, triggered by his enthusiasm for investigating war crimes committed under General Franco, the case was assigned to another judge, and the trail has since gone quiet. As David Corn explained, “The Obama administration essentially got what it wanted. The case of the Bush Six went away.”

Supression of torture inquiries in the US — and an unexpected conviction in Italy

As a result of these revelations, it is clear that the US government — under Bush and Obama — has been largely successful in preventing the prosecution of anyone involved in the horrendous human rights abuses initiated in the “War on Terror,” not just abroad, but also in the US. In the last year, fulfilling his “belief that we need to look forward as opposed to looking backwards,” which he expressed in January 2009, the week before he took office, President Obama has presided over the whitewash of a damning internal Justice Department report into John Yoo and Jay S. Bybee (who wrote and approved the notorious “torture memos” of August 2002, which attempted to redefine torture, so that it could be used by the CIA), and has cynically resorted to manipulating the little known and little used “state secrets” privilege to prevent the merest whisper of evidence regarding the torture of foreign prisoners to be discussed in a US court.

One unexpected exception to this global clampdown is Italy, where 22 CIA operatives and a US Air Force Colonel were convicted in absentia, in November 2009, for their part in the kidnapping, in broad daylight in a street in Milan on February 17, 2003 of the cleric Abu Omar, who was then rendered to Egypt, where he was subjected to horrific torture. The US government, of course, refused to allow these operatives to be extradited to Italy to face justice, but the ruling remains a permanent black mark against the Bush administration, which can never be washed away or concealed, and the entire sordid story has recently been covered, in extraordinary detail, by Steve Hendricks in his book, A Kidnapping in Milan: The CIA on Trial.

Trouble ahead in Spain, Germany, Macedonia, Lithuania, Poland and the UK

Moreover, it may be that, despite the success of the US efforts in Germany and Spain, further troubles lie ahead in both countries. In May 2010, Spain picked up where Germany left off regarding the prosecution of the thirteen CIA agents responsible for the torture of Khaled El-Masri, when prosecutors attached to the Audiencia Nacional in Madrid asked a judge to issue an order for the agents’ arrest, and, as Scott Horton also reported at the time, “A criminal proceeding relating to the kidnapping and torture of El-Masri is also underway in Germany.”

In addition, in 2009, as Amrit Singh of the Open Society Justice Initiative explained in a recent article on the Huffington Post, the OSJI filed an application on El-Masri’s behalf against the Macedonian government before the European Court of Human Rights. Singh continued:

In October 2010, the European Court communicated the case to the Macedonian government. This is a significant development, as only about ten percent of all cases brought before the European Court get communicated. Perhaps even more significant is the fact that the European Court has asked the Macedonian government a set of pointed questions, including whether agents of the Macedonian government detained El-Masri and subjected him to torture or cruel inhuman or degrading treatment; whether Macedonian government agents handed him over to a CIA rendition team; whether the Macedonian government was aware that El-Masri faced a real risk of being subjected to torture or cruel inhuman or degrading treatment if transferred to the Salt Pit; and whether Macedonia had conducted an effective official investigation of this case.

In addition, it is possible that further problems — which seem already to have gone beyond the reach of US diplomatic bullying — relate to investigations in Lithuania, Poland and the UK.

As Amnesty International noted in its recent report, “Open secret: Mounting evidence of Europe’s complicity in rendition and secret detention,” Lithuania, whose role as the host of a secret CIA prison in Europe — along with Poland and Romania — was most recently exposed in a United Nations report on secret detention, “has admitted that two secret prisons existed.” Significantly, “The prisons were visited in June 2010 by a delegation from the European Committee for the Prevention of Torture, the first visit by an independent monitoring body to a secret CIA prison in Europe,” and a criminal investigation is ongoing.

Although Romania continues to deny hosting a secret prison, it is implicated in documents issued by Poland’s Border Guard Office in July 2010, which, as I explained in an article at the time, provided, for the first time, “details of the number of prisoners transferred by the CIA to a secret prison in Poland between December 5, 2002 and September 22, 2003, and, in one case, the number of prisoners who were subsequently transferred to a secret CIA prison in Romania.” The revelations led immediately to claims that former Prime Minister Leszek Miller and former President Aleksander Kwasniewski “may face war crime charges for agreeing to host the facility,” and in September, as Amnesty described it, “the prosecutor’s office confirmed that it was investigating claims by Abd al-Rahim al-Nashiri [one of 14 "high-value detainees eventually transferred to Guantánamo, in September 2006], that he was held in secret in Poland.” Moreover, al-Nashiri “was granted ‘victim’ status in October 2010, the first time a rendition victim’s claims have been acknowledged in this context.”

In the UK, British complicity in US torture has been acknowledged, through the deliberations of judges, since August 2008, when two high court judges, Lord Justice Thomas and Mr. Justice Lloyd Jones, found that the British government had been involved in “wrongdoing” in the case of Binyam Mohamed, a British resident who spent over two years being tortured in Pakistan, Morocco and the CIA’s “Dark Prison” in Kabul, before he was sent to Guantánamo. Mohamed was released in February 2009 — in the hope, shared by both the British and the American governments, that his release would shut down any further interest in his case — but in fact Lord Justice Thomas and Mr. Justice Lloyd Jones continued to fight against foreign secretary David Miliband’s refusal to allow them to release a summary of documents provided by the US, relating to Mohamed’s treatment by US agents in Pakistan.

Finally in February this year, 18 months after their initial ruling, the Court of Appeal ordered the documents to be released, and it was finally revealed that the summary described a range of techniques, which, in the judges’ opinion, “could readily be contended to be at the very least cruel, inhuman and degrading treatment by the United States authorities,” including “continuous sleep deprivation,” combined with “threats and inducements,” including the threat of “disappearing.” As the judges also explained, “the stress brought about by these deliberate tactics” was “causing him significant mental stress and suffering,” to the extent that he was being “kept under self-harm observation.”

Although a Metropolitan Police investigation was launched into Mohamed’s allegations, this investigation recently concluded with an announcement that there was insufficient evidence to prosecute the MI5 officer, known as Witness B, “for any criminal offence arising from the interview of Binyam Mohamed in Pakistan on 17 May 2002.”

However, the larger picture of British complicity in torture has refused to go away. Three weeks ago, the British government announced that it had reached a substantial financial settlement with 15 former Guantánamo prisoners — and with one man, Shaker Aamer, who is still held — to staunch the flow of dangerous documents being released as part of a civil claim for damages brought by a number of former prisoners. These had already revealed uncomfortable truths about the complicity in torture of former Prime Minister Tony Blair and former foreign secretary Jack Straw, and although David Cameron, the Prime Minister of the new coalition government, hopes to prevent any further damning revelations emerging, by announcing that a judicial inquiry into British complicity in torture will be held, directed by Sir Peter Gibson, who was previously responsible for overseeing the conduct of the security services, it is by no means certain that the inquiry will be able to halt further revelations, some of which may well involve the US.

It may be that further documents in WikiLeaks’ cache of diplomatic cables deal with the torture problems encountered in the UK since 2008, and with some of the other cases mentioned above, and it is also worth reflecting that, for the foreseeable future, diplomats may find it harder than before to exert pressure to suppress evidence of US torture, having suffered something of a hammer blow to their credibility through the documents released to date.

As a result, this is probably a good time for those in other countries who wish to hold the US government accountable for torture to press ahead with their claims and their cases, and if this is so, then on this point alone WikiLeaks’ disclosures will have been invaluable.

Originally published on the website of the Future of Freedom Foundation.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

Former covert CIA operative Valerie Plame Wilson would still like to know the identity of the CIA official who passed her name to the office of Vice President Dick Cheney in the spring of 2003, and ‘under what circumstances.’

That’s just one of several unanswered questions Plame Wilson has been trying to figure out in the years since several senior officials in the Bush administration leaked her name to syndicated columnist Robert Novak and a handful of other journalists. That leak ended her two-decade CIA career.

‘I’d like to know, why did Novak go with my maiden name, Plame, in his original article?’ Plame Wilson said during an hour-long, two-part interview with Truthout. ‘I always thought that was strange. When I married, I took my married name. And then he [Novak] used Valerie Plame [in his column]. It was only the CIA who knew that I worked for them, and my maiden name.’

Plame Wilson is promoting her book, ‘Fair Game,’ a memoir she wrote about the leak, her job as an intelligence operative working on counterproliferation issues, and the fallout that ensued when she became a public figure after her identity and CIA status were published in newspapers and magazines.

Her book landed on The New York Times bestseller list two weeks ago and has more than 350,000 copies in print. Perhaps the most important question yet to be answered for Plame Wilson is whether President Bush had prior knowledge about the leak of her identity. “I’d love to know, what did President Bush know about all of this?” Plame Wilson said.

British resident Binyam Mohamed was tortured by the CIA while in Pakistani custody in April and May 2002. (Photo: art makes me smile; Edited: Jared Rodriguez / t r u t h o u t)

Sometimes a story is so troubling that it takes some time to digest, and the ruling delivered last Wednesday by the Ninth Circuit Court of Appeals (PDF), in a lawsuit filed by the ACLU on behalf of five men subjected to “extraordinary rendition” and torture, is one such story. The men — Binyam Mohamed, Ahmed Agiza, Abou Elkassim Britel, Mohamed Farag Ahmad Bashmilah and Bisher al-Rawi — claim, with some justification, and with copious amounts of evidence in their possession, that their rendition, and their torture in a variety of countries, was facilitated by Jeppesen Dataplan, Inc., a subsidiary of Boeing whose role as “The CIA’s Travel Agent” was first exposed, through statements made by a former Jeppesen employee, in an article by Jane Mayer for the New Yorker in October 2006.

In statements that were later submitted to the court, Sean Belcher, a former employee, said that the director of Jeppesen International Trip Planning Services, Bob Overby, had told him, “We do all the extraordinary rendition flights,” which he also referred to as “the torture flights” or “spook flights.” Belcher stated that “there were some employees who were not comfortable with that aspect of Jeppesen’s business” because they knew “some of these flights end up” with the passengers being tortured, but added that Overby had explained, “that’s just the way it is, we’re doing them” because “the rendition flights paid very well.”

Last Wednesday, however, when asked to rule on whether these five men should have their day in court, or whether the government should be allowed to dismiss their lawsuit by claiming that the exposure of any information relating to “extraordinary rendition” and torture threatened the national security of the United States, American justice contemplated looking at itself squarely in the mirror, telling truth to power, and allowing these men the opportunity to address what had happened to them in a court of law, but, at the last minute, flinched and turned away. By six votes to five, the Court decided that, in the interests of national security, the men’s day in court would be denied.

As Judge Raymond C. Fisher stated in the majority opinion (in which he was joined by Chief Judge Alex Kozinski, and Judges Richard C. Tallman, Johnnie B. Rawlinson, Consuelo M. Callahan and Carlos T. Bea):

This case requires us to address the difficult balance the state secrets doctrine strikes between fundamental principles of our liberty, including justice, transparency, accountability and national security. Although as judges we strive to honor all of these principles, there are times when exceptional circumstances create an irreconcilable conflict between them. On those rare occasions, we are bound to follow the Supreme Court’s admonition that “even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that [state] secrets are at stake.” After much deliberation, we reluctantly conclude this is such a case, and the plaintiffs’ action must be dismissed.

This is an extraordinarily depressing result, because the Jeppesen case, which had been dismissed by the District Court in 2008, had then been won on appeal before three judges in the Ninth Circuit Court of Appeals in April 2009. On that occasion the judges in question — Judges Michael Daly Hawkins, Mary M. Schroeder and William C. Canby, Jr. — had thoroughly demolished the government’s claim — first submitted by the Bush administration, and then, to the judges’ great surprise, slavishly copied by President Obama’s Justice Department — that it could dismiss the case by invoking the “state secrets” doctrine.

Unlike last Wednesday, when the majority agreed with the government regarding the “state secrets” doctrine, the panel of judges in April 2009 had no hesitation, in reviewing what they described as the “relatively thin history” of the doctrine, in dismissing the government’s reliance on two precedents because of their irrelevance to the Jeppesen case. One, Totten v. United States, involved a secret agreement between the government and a spy in the nineteenth century, and the other, United States v. Reynolds, from 1953, dealt with the prevention of “discovery of secret evidence when disclosure would threaten national security.”

As I explained in an article at the time:

[The judges, in an opinion written by Judge Hawkins] did this first by pinpointing the “clear error” the District Court made when it initially dismissed the case, when the court declared, “inasmuch as the case involves ‘allegations’ about the conduct of the CIA, the privilege is invoked to protect information which is properly the subject of state secrets privilege,” and also declared that “the very subject matter of this case is a state secret.” In contrast, the Appeals Court judges insisted that “The subject matter … is not a state secret, and the case should not have been dismissed at the outset.”

Dismissing the government’s arguments, they concluded that, although the government may be entitled to protect certain evidence in the interests of national security, it has no justification for suppressing judicial scrutiny of the case as a whole, particularly because some information relating to the case is already publicly available, and also because what the government is actually trying to do, with no legal precedent whatsoever, is to impose a blanket ban on all discussion of potential government wrongdoing.

In a particularly powerful passage, Judge Hawkins stated:

At base, the government argues … that state secrets form the subject matter of a lawsuit, and therefore require dismissal, any time a complaint contains allegations, the truth or falsity of which has been classified as secret by a government official. The district court agreed, dismissing the case exclusively because it “involves allegations” about [secret] conduct by the CIA.” This sweeping characterization of the “very subject matter” bar has no logical limit — it would apply equally to suits by US citizens, not just foreign nationals; and to secret conduct committed on US soil, not just abroad. According to the government’s theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law (emphasis added).

Elsewhere, as I also explained:

[T]he judges drew on Boumediene [v. Bush, the 2008 ruling granting the Guantánamo prisoners constitutionally guaranteed habeas corpus rights], in which the Supreme Court stated that, while “[s]ecurity depends upon a sophisticated intelligence apparatus,” it “subsists, too, in fidelity to freedom’s first principles [including] freedom from arbitrary and unlawful restraint and the personal liberty that is secured by the adherence to the separation of powers.” They also drew on Hamdi v. Rumsfeld, another important Guantánamo case in the Supreme Court (in 2004), in which the justices stated, “Separation-of-powers concerns take on an especially important role in the context of secret Executive conduct. As the Founders of this nation knew well, arbitrary imprisonment and torture under any circumstance is a ‘gross and notorious … act of despotism.’”

I was also particularly impressed by the following passage:

If the simple fact that information is classified were enough to bring evidence containing that evidence within the scope of the [state secrets] privilege, then the entire state secrets inquiry — from determining which matters are secret to which disclosures pose a threat to national security — would fall exclusively to the Executive branch, in plain contravention of the Supreme Court’s admonition that “[j]udicial control over the evidence in a case cannot be abdicated to the caprice of executive officers” without “lead[ing] to intolerable abuses.” … A rule that categorically equated “classified” matters with “secret” matters would, for example, perversely encourage the President to classify politically embarrassing information simply to place it beyond the reach of judicial process.

As I also explained:

What was notable about this passage was that it succinctly encapsulated the entire approach to “classified” information that was maintained by the Bush administration, and also mentioned invoking national security to prevent embarrassment — or, it could be said, to prevent the disclosure of crimes.

Sixteen months on, it is clear from reviewing Judge Hawkins’ opinion that nothing has fundamentally changed, and that therefore the majority that prevailed last week has simply repeated the “clear error” the District Court made when it initially dismissed the case, and has endorsed the President’s right to “classify politically embarrassing information simply to place it beyond the reach of judicial process,” albeit with more obvious hand-wringing.

If justice does still mean anything under the cowardly Obama administration, then the Jeppesen case will proceed to the Supreme Court, although, since Justice John Paul Stevens retired (PDF), there is no longer much hope for justice there either. Justice Stevens’ replacement, Obama’s former Solicitor General Elena Kagan, is contaminated by her involvement in national security arguments on behalf of her former boss, and will have to recuse herself from anything touching on the Bush administration’s toxic legacy. As a result, the Supreme Court is likely to split 4-4 on issues like the Jeppesen case, handing victory back to the senior administration officials who so desperately crave blanket immunity for the Bush administration’s torturers.

This is a profoundly depressing thought, especially as so many commentators have expressed their disgust at last week’s ruling. In an editorial entitled, “Torture Is a Crime, Not a Secret,” the New York Times lamented, “The decision diminishes any hope that this odious practice [“extraordinary rendition”] will finally receive the legal label it deserves: a violation of international law,” and the Los Angeles Times declared, “The decision to short-circuit the trial process is more than a misreading of the law; it’s an egregious miscarriage of justice. That’s obvious from a perusal of the plaintiffs’ complaint. One said that while he was imprisoned in Egypt, electrodes were attached to his earlobes, nipples and genitals. A second, held in Morocco, said he was beaten, denied food and threatened with sexual torture and castration. A third claimed that his Moroccan captors broke his bones and cut him with a scalpel all over his body, and poured hot, stinging liquid into his open wounds.”

For the ACLU, Ben Wizner stated:

This is a sad day not only for the torture victims whose attempt to seek justice has been extinguished, but for all Americans who care about the rule of law and our nation’s reputation in the world. To date, not a single victim of the Bush administration’s torture program has had his day in court. If today’s decision is allowed to stand, the United States will have closed its courtroom doors to torture victims while providing complete immunity to their torturers. The torture architects and their enablers may have escaped the judgment of this court, but they will not escape the judgment of history.

Moreover, on Monday, Scott Horton of Harper’s Magazine not only pointed out that the facts of the case “were established beyond any reasonable doubt without the need to turn to classified information,” but also reminded readers that, “Under the International Convention for the Protection of All Persons from Enforced Disappearance, which adopts the position that the US Justice Department took in 1946, the crime of disappearance connected to torture is a crime against humanity, with no statute of limitations and no defense of superior orders applicable.” Horton also reminded readers that, by signing the UN Convention Against Torture in 1987, the United States “made an unequivocal commitment to the international community to compensate those who are tortured by its agents” — and also, it should be noted, to bring the perpetrators to justice.

In addition, Horton pointed out that, in February this year, the Court of Appeal in London, which “had already viewed the formidable evidence” in Binyam Mohamed’s case, had brought to an end 18 months of Obama-style stonewalling by foreign secretary David Miliband regarding British knowledge of Mohamed’s torture by US agents, and had ordered the information to be publicly released, leading to a criminal investigation, which is ongoing, and, with a change of government, the announcement of a judicial inquiry into British complicity in torture — something that many of Obama’s supporters had hoped would happen in the US. As Horton explained, “The British court concluded, just as the Ninth Circuit was legally obligated to do, that state-secrecy claims could not be used to block discovery of evidence of crimes.”

Horton also explained that, although the position taken by Eric Holder’s Justice Department — that it is “protecting state secrets essential to our security” — is “risible, and half of the court saw through it,” what is really at stake is the possibility that evidence produced in the US could be used elsewhere. As he stated:

Twenty-three US agents have already been convicted for their role in a rendition in Milan. Prosecutors in Spain have issued arrest warrants for a further 13 US agents involved in a botched rendition case that touched on Spanish soil. Prosecutors in Germany have opened a criminal investigation into the use of Ramstein [Air Force Base] in connection with torture and illegal kidnappings. Prosecutors in Poland are pursuing a similar matter. And Prime Minister David Cameron was recently forced to brief President Obama on his decision to direct a formal inquiry which could lead to prosecutions tied directly to the subject matter of the Mohamed case. This is the remarkable background to the case decided by the Ninth Circuit, and remarkably not a single word about this appears anywhere in the opinion — or even in most of the press accounts about it.

While we wait to see what — if anything — happens next, I’d like to leave you with some sensible words regarding the legitimate scope of the “state secrets” doctrine, as written by Judge Hawkins in the opening paragraphs of his dissenting opinion last week, in which he was again joined by Judges Schroeder and Canby, and also by Judges Sidney R. Thomas and Richard A. Paez:

The majority dismisses the case in its entirety before Jeppesen has even filed an answer to Plaintiffs’ complaint. Outside of the narrow Totten context, the state secrets privilege has never applied to prevent parties from litigating the truth or falsity of allegations, or facts, or information simply because the government regards the truth or falsity of the allegations to be secret. Within the Reynolds framework, dismissal is justified if and only if specific privileged evidence is itself indispensable to establishing either the truth of the plaintiffs’ allegations or a valid defense that would otherwise be available to the defendant.

This is important, because an approach that focuses on specific evidence after issues are joined has the benefit of confining the operation of the state secrets doctrine so that it will sweep no more broadly than clearly necessary. The state secrets doctrine is a judicial construct without foundation in the Constitution, yet its application often trumps what we ordinarily consider to be due process of law. This case now presents a classic illustration. Plaintiffs have alleged facts, which must be taken as true for purposes of a motion to dismiss, that any reasonable person would agree to be gross violations of the norms of international law, remediable under the Alien Tort Statute. They have alleged in detail Jeppesen’s complicity or recklessness in participating in these violations. The government intervened, and asserted that the suit would endanger state secrets. The majority opinion here accepts that threshold objection by the government, so Plaintiffs’ attempt to prove their case in court is simply cut off. They are not even allowed to attempt to prove their case by the use of non-secret evidence in their own hands or in the hands of third parties.

It is true that, judicial construct though it is, the state secrets doctrine has become embedded in our controlling decisional law. Government claims of state secrets therefore must be entertained by the judiciary. But the doctrine is so dangerous as a means of hiding governmental misbehavior under the guise of national security, and so violative of common rights to due process, that courts should confine its application to the narrowest circumstances that still protect the government’s essential secrets. When, as here, the doctrine is successfully invoked at the threshold of litigation, the claims of secret are necessarily broad and hypothetical. The result is a maximum interference with the due processes of the courts, on the most general claims of state secret privilege. It is far better to require the government to make its claims of state secrets with regard to specific items of evidence or groups of such items as their use is sought in the lawsuit. An official certification that evidence is truly a state secret will be more focused if the head of a department must certify that specific evidence sought in the course of litigation is truly a secret and cannot be revealed without danger to overriding, essential government interests. And when responsive pleading is complete and discovery under way, judgments as to whether secret material is essential to Plaintiffs’ case or Jeppesen’s defense can be made more accurately. […]

This is an appeal from a Rule 12 dismissal, which means that the district court was required to assume that the well-pleaded allegations of the complaint are true, and that we “construe the complaint in the light most favorable to the plaintiff[s].” The majority minimizes the importance of these requirements by gratuitously attaching “allegedly” to nearly each sentence describing what Plaintiffs say happened to them, and by quickly dismissing the voluminous publicly available evidence supporting those allegations, including that Jeppesen knew what was going on when it arranged flights described by one of its own officials as “torture flights.” Instead, the majority assumes that even if Plaintiffs’ prima facie case and Jeppesen’s defense did not depend on privileged evidence, dismissal is required “because there is no feasible way to litigate Jeppesen’s alleged liability without creating an unjustifiable risk of divulging state secrets.” But Jeppesen has yet to answer or even to otherwise plead, so we have no idea what those defenses or assertions might be. Making assumptions about the contours of future litigation involves mere speculation, and doing so flies straight in the face of long standing principles of Rule 12 law by extending the inquiry to what might be divulged in future litigation.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.