Indefinite Torture....Our Approach to Freedom?

Long-Term Plan Sought for Terror Suspects
By Dana Priest
The Washington Post

Sunday 02 January 2005

Administration officials are preparing long-range plans for indefinitely imprisoning suspected terrorists whom they do not want to set free or turn over to courts in the United States or other countries, according to intelligence, defense and diplomatic officials.

The Pentagon and the CIA have asked the White House to decide on a more permanent approach for potentially lifetime detentions, including for hundreds of people now in military and CIA custody whom the government does not have enough evidence to charge in courts. The outcome of the review, which also involves the State Department, would also affect those expected to be captured in the course of future counterterrorism operations.

"We've been operating in the moment because that's what has been required," said a senior administration official involved in the discussions, who said the current detention system has strained relations between the United States and other countries. "Now we can take a breath. We have the ability and need to look at long-term solutions."

One proposal under review is the transfer of large numbers of Afghan, Saudi and Yemeni detainees from the military's Guantánamo Bay, Cuba, detention center into new U.S.-built prisons in their home countries. The prisons would be operated by those countries, but the State Department, where this idea originated, would ask them to abide by recognized human rights standards and would monitor compliance, the senior administration official said.

As part of a solution, the Defense Department, which holds 500 prisoners at Guantánamo Bay, plans to ask Congress for $25 million to build a 200-bed prison to hold detainees who are unlikely to ever go through a military tribunal for lack of evidence, according to defense officials.

The new prison, dubbed Camp 6, would allow inmates more comfort and freedom than they have now, and would be designed for prisoners the government believes have no more intelligence to share, the officials said. It would be modeled on a U.S. prison and would allow socializing among inmates.

"Since global war on terror is a long-term effort, it makes sense for us to be looking at solutions for long-term problems," said Bryan Whitman, a Pentagon spokesman. "This has been evolutionary, but we are at a point in time where we have to say, 'How do you deal with them in the long term?' "

The administration considers its toughest detention problem to involve the prisoners held by the CIA. The CIA has been scurrying since Sept. 11, 2001, to find secure locations abroad where it could detain and interrogate captives without risk of discovery, and without having to give them access to legal proceedings.

Little is known about the CIA's captives, the conditions under which they are kept - or the procedures used to decide how long they are held or when they may be freed. That has prompted criticism from human rights groups, and from some in Congress and the administration, who say the lack of scrutiny or oversight creates an unacceptable risk of abuse.

Rep. Jane Harman (D-Calif.), vice chairman of the House intelligence committee who has received classified briefings on the CIA's detainees and interrogation methods, said that given the long-term nature of the detention situation, "I think there should be a public debate about whether the entire system should be secret.

"The details about the system may need to remain secret," Harman said. At the least, she said, detainees should be registered so that their treatment can be tracked and monitored within the government. "This is complicated. We don't want to set up a bureaucracy that ends up making it impossible to protect sources and informants who operate within the groups we want to penetrate."

The CIA is believed to be holding fewer than three dozen al Qaeda leaders in prison. The agency holds most, if not all, of the top captured al Qaeda leaders, including Khalid Sheik Mohammed, Ramzi Binalshibh, Abu Zubaida and the lead Southeast Asia terrorist, Nurjaman Riduan Isamuddin, known as Hambali.

CIA detention facilities have been located on an off-limits corner of the Bagram air base in Afghanistan, on ships at sea and on Britain's Diego Garcia island in the Indian Ocean. The Washington Post reported last month that the CIA has also maintained a facility within the Pentagon's Guantánamo Bay complex, though it is unclear whether it is still in use.

In contrast to the CIA, the military produced and declassified hundreds of pages of documents about its detention and interrogation procedures after the Abu Ghraib prison scandal. And the military detainees are guaranteed access to the International Committee of the Red Cross and, as a result of a U.S. Supreme Court ruling, have the right to challenge their imprisonment in federal court.

But no public hearings in Congress have been held on CIA detention practices, and congressional officials say CIA briefings on the subject have been too superficial and were limited to the chairman and vice chairman of the House and Senate intelligence committees.

The CIA had floated a proposal to build an isolated prison with the intent of keeping it secret, one intelligence official said. That was dismissed immediately as impractical.

One approach used by the CIA has been to transfer captives it picks up abroad to third countries willing to hold them indefinitely and without public proceedings. The transfers, called "renditions," depend on arrangements between the United States and other countries, such as Egypt, Jordan and Afghanistan, that agree to have local security services hold certain terror suspects in their facilities for interrogation by CIA and foreign liaison officers.

The practice has been criticized by civil liberties groups and others, who point out that some of the countries have human rights records that are criticized by the State Department in annual reports.

Renditions originated in the 1990s as a way of picking up criminals abroad, such as drug kingpins, and delivering them to courts in the United States or other countries. Since 2001, the practice has been used to make certain detainees do not go to court or go back on the streets, officials said.

"The whole idea has become a corruption of renditions," said one CIA officer who has been involved in the practice. "It's not rendering to justice, it's kidnapping."

But top intelligence officials and other experts, including former CIA director George J. Tenet in his testimony before Congress, say renditions are an effective method of disrupting terrorist cells and persuading detainees to reveal information.

"Renditions are the most effective way to hold people," said Rohan Gunaratna, author of "Inside al Qaeda: Global Network of Terror." "The threat of sending someone to one of these countries is very important. In Europe, the custodial interrogations have yielded almost nothing" because they do not use the threat of sending detainees to a country where they are likely to be tortured.




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Behind the 'Torture Memos'
By John Yoo
The San Jose Mercury News

Sunday 02 January 2005

As confirmation hearings near, lawyer defends wartime policy.
This week, the Senate Judiciary Committee will hold hearings on the nomination of Alberto Gonzales to be attorney general. It comes as no surprise that he is likely to face hard questions.

As counsel to the president for the past four years, Gonzales helped develop the United States' policies in the war on terror. He demonstrated leadership and, as is often the case in perilous times, generated controversy.

He will encounter questions about the decision to deny prisoner-of-war status under the Geneva Conventions to Al-Qaida and Taliban fighters and about his role in what have come to be known as "torture memos." As a Justice Department lawyer, I dealt with both issues - I worked on and signed the department's memo on the Geneva Conventions and helped draft the main memo defining torture. I can explain why the administration decided that aggressive measures, though sometimes unpopular, are necessary to protect America from another terrorist attack.

Sept. 11, 2001, proved that the war against Al-Qaida cannot be won solely within the framework of the criminal law. The attacks were more than crimes - they were acts of war. Responding to the attacks and protecting the United States from another requires a military approach to the conflict. But Al-Qaida, without regular armed forces, territory or citizens to defend, also presents unprecedented military challenges.

One of the first policy decisions in this new war concerned the Geneva Conventions - four 1949 treaties ratified by the United States that codify many of the rules for war. After seeking the views of the Justice, State, and Defense departments, Gonzales concluded in a draft January 2002 memo to the president that Al-Qaida and the Taliban were not legally entitled to POW status. He also advised that following every provision of the conventions could hurt the United States' ability to protect itself against ruthless enemies.

Gonzales' memo agreed with the Justice Department and disagreed with the State Department, which felt the Taliban (though not Al-Qaida) qualified as POWs.

The Justice Department's Office of Legal Counsel - where I worked at the time - determined that the Geneva Conventions legally do not apply to the war on terrorism because Al-Qaida is not a nation-state and has not signed the treaties. Al-Qaida members also do not qualify as legal combatants because they hide among peaceful populations and launch surprise attacks on civilians - violating the fundamental principle that war is waged only against combatants. Consistent American policy since at least the Reagan administration has denied terrorists the legal privileges reserved for regular armed forces.

The Taliban raised different questions because Afghanistan is a party to the Geneva Conventions, and the Taliban arguably operated as its de facto government. But the Justice Department found that the president had reasonable grounds to deny Taliban members POW status because they did not meet the conventions' requirements that lawful combatants operate under responsible command, wear distinctive insignia, and obey the laws of war. The Taliban flagrantly violated those rules, at times deliberately using civilians as human shields.

According to Gonzales' memo, the State Department argued that denying POW status to the Taliban would damage U.S. standing in the world and could undermine the standards of treatment for captured American soldiers. Gonzales also passed on the department's worry that denying POW status "could undermine U.S. military culture which emphasizes maintaining the highest standards of conduct in combat, and could introduce an element of uncertainty in the status of adversaries."

The press has consistently misrepresented Gonzales' views and latched onto a sexy sound bite used out of context. When Gonzales said in the memo that this new war made some provisions of the Geneva Conventions "quaint," he referred to the requirement that POWs be given commissary privileges, monthly pay, athletic uniforms and scientific instruments. Many stories cut the quotation short, making it seem as if he had deemed the conventions themselves "quaint."

'Obsolete' Limitations

Gonzales' memo did, however, say that the terrorist threat rendered "obsolete Geneva's strict limitations on questioning of enemy prisoners." Why? Because the United States needed to be able "to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians." Information remains the primary weapon to prevent a future Al-Qaida attack on the United States.

Gonzales also observed that denying POW status would limit the prosecution of U.S. officials under a federal law criminalizing a grave breach of the Geneva Conventions. He was concerned that some of the conventions' terms were so vague (prohibiting, for example, "outrages upon personal dignity") that officials would be wary of taking actions necessary to respond to unpredictable developments in this new war.

The president took Gonzales' advice and denied POW status to suspected Al-Qaida and Taliban members.

Gonzales' advice raised legal and policy questions. Legally, could the president determine by himself that Al-Qaida or the Taliban were not entitled to POW status? No one doubted that he had the constitutional authority. Presidents have long been the primary interpreters of treaties on behalf of the United States, especially in the area of warfare. Federal judges have since split on the POW issue.

The other question was what standards the United States should follow as a matter of policy if the Geneva Conventions did not legally apply. Gonzales recommended that the United States should continue "its commitment to treat the detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles" of the Geneva Conventions. Prisoners would receive adequate food, housing and medical care, and could practice their religion. Gonzales advised that as long as the president ordered humane treatment, the military would follow his orders.

Gonzales has also received criticism for a memo he requested from the Justice Department to provide the legal definition of torture. According to press reports, Gonzales made the request after the CIA had captured high-level Al-Qaida leaders and wanted clarification of the standards for interrogation under U.S. law.

Congress' Role

While the definition of torture in the August 2002 memo is narrow, that was Congress' choice. When the Senate approved the U.N. Convention Against Torture in 1994, it stated its understanding of torture as an act "specifically intended to inflict severe physical or mental pain or suffering." The Senate defined mental pain and suffering as "prolonged mental harm" caused by threats of severe physical harm or death to a detainee or third person, the administration of mind-altering drugs or other procedures "calculated to disrupt profoundly the senses or the personality." Congress adopted this definition in a 1994 law criminalizing torture committed abroad.

The Senate also made clear that it believed the treaty's requirement that nations undertake to prevent "cruel, inhuman or degrading treatment or punishment" was too vague. The Senate declared its understanding that the United States would follow only the Constitution's prohibition of cruel and unusual punishment.

The Senate and Congress' decisions provided the basis for the Justice Department's definition of torture:

"Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture (under U.S. law), it must result in significant psychological harm of significant duration, e.g., lasting for months or even years. . . . We conclude that the statute, taken as a whole, makes plain that it prohibits only extreme acts."

Under this definition, interrogation methods that go beyond polite questioning but fall short of torture could include shouted questions, reduced sleep, stress positions (like standing for long periods of time), and isolation from other prisoners. The purpose of these techniques is not to inflict pain or harm, but simply to disorient.

On Thursday, the Justice Department responded to criticism from the summer, when the opinion leaked to the press. The department issued a new memo that superseded the August 2002 memo. Among other things, the new memo withdrew the statement that only pain equivalent to such harm as serious physical injury or organ failure constitutes torture and said, instead, that torture may consist of acts that fall short of provoking excruciating and agonizing pain.

Although some have called this a repudiation, the Justice Department's new opinion still generally relies on Congress' restrictive reasoning on what constitutes torture. Among other things, it reiterates that there is a difference between "cruel, inhuman and degrading treatment" and torture - a distinction that many critics of the administration have ignored or misunderstood.

For example, according to press reports, the International Committee for the Red Cross has charged that interrogations at Guantánamo Bay, which included solitary confinement and exposing prisoners to temperature extremes and loud music, were "tantamount to torture." This expands torture beyond the United States' understanding when it ratified the U.N. Convention Against Torture and enacted the 1994 statute. Not only does the very text of the convention recognize the difference between cruel, inhuman and degrading treatment and torture, but the United States clearly chose to criminalize only torture.

Abu Ghurayb Abuses

Criticism of the Bush administration's legal approach to interrogation first arose in the summer after the Abu Ghurayb prison scandal, and has continued with more recent stories of FBI memos showing concern about abuse of prisoners in Iraq and Guantánamo Bay. No one condones the abuses witnessed in the Abu Ghurayb photos that are being properly handled through the military justice system. But those abuses had nothing to do with the memos defining torture - which did not discuss the pros and cons of any interrogation tactic - nor the decision to deny POW protections to Al-Qaida and the Taliban. Gonzales, among others, has made clear that the administration never ordered the torture of any prisoner. And as multiple investigatory commissions have now found, these incidents did not result from any official orders.

At the urging of human rights groups and other opponents of the administration's policies in the war on terrorism, Senate Democrats have promised to closely question Gonzales on these issues. I believe the hearings will show that Gonzales, who never sought to pressure or influence the Justice Department's work, appropriately sought answers to ensure compliance with the applicable law.

Asking those questions is important because we are in the midst of an unconventional war. Our only means for preventing future terrorist attacks, which could someday involve weapons of mass destruction, is to rely on intelligence that permits pre-emptive action. An American leader would be derelict if he did not seek to understand all available options in such perilous circumstances.



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John Yoo is a law professor at the University of California-Berkeley and a visiting scholar at the American Enterprise Institute. He served as deputy assistant attorney general in the Office of Legal Counsel of the Justice Department from 2001 to '03. He wrote this article for Perspective.
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