The Bush Administration, Human Rights, and a Culture of Torture
IN THIS ARTICLE
For most Americans, 9/11 represents a turning point for our country. It is the beginning of a new chapter in our relations to the world and how we view our place in it. It is the beginning of a chapter where the American commitment to human rights was put in doubt, war was waged, and potential crimes were committed in the name of national security. The nineties by comparison were a prosperous time for Americans and the country. The economy grew by leaps and bounds; democracy was flourishing throughout the world. Even our old enemy, the mighty Soviet Union, turned out to be nothing more than lies and charade, collapsing in real time under the weight of itself. We assumed that practices such as aggression, totalitarianism, and even war itself would soon be extinguished from the world. These assumptions may have been naive, but it would have been hard to imagine on September 10th how far steeped in the “the dark side” we would find ourselves in the years following the attacks.1
While the true full story is not yet know, we know from a number of sources, most importantly the congressional report produced by Representative John Conyers and Inspector General reports by the Justice Department, that violations in American and International law were undertaken by the Bush administration. The goal of this paper is to study not only what these violations were and how they happened, but to probe deeper into the psychological effects 9/11. The arguments and actions taken by the Bush administration have been very persuasive to many Americans. How has our culture changed in the previous decade? The goal is to look at what has been unleashed from the Pandora’s box in this new culture where torture, abuse, and erosion of rights are considered acceptable. Ultimately, the upshot of what has happened since 9/11 demonstrates more than ever the importance of a “commitment to executive constitutionalism from those who seek and serve in the office of the President of the United States”.2 Aspects of daily life taken for granted before have gained new importance. For instance we used to think we were safe getting on a plane, but now the rules in place are downright draconian. We take off our shoes and are forbidden to carry on liquids even though the benefit of these rules is more psychological than functionary. A whole segment of the population will forever be looked on suspiciously. Our fears have become internalized and a price has been paid.3 Yet America should and can still be a country that upholds its ideals while keeping itself safe.
Response to 9/11
In the days following 9/11, President Bush sought approval from Congress to use military force if necessary against those states that were complicit in the attacks or sheltered those who planned them. Congress quickly granted Bush this right. On September 18th, 2001 Bush signed into law the Authorization for the Use of Military Force (AUMF), which granted Bush the authority 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, 200, or harbored such organizations or person, in order to prevent any future acts of international terrorism against the united states by such nations, organizations or person.”4
It is important to note the distinction between what this declaration says, and a full declaration of war by Congress. The AUMF was clearly crafted in as broad a manner as possible to allow for executive maneuvering, but it did not declare war on any one state. This is representative of the fact that while it is called the “war on terror”, in reality it is unlike any war the U.S has ever fought before. Bush reorganized the nations law enforcement and intelligence services in the biggest government shuffle since World War Two with the formation of the cabinet level Homeland Security Department. Congress also passed the Patriot Act in 2001. Some members of Congress later expressed frustration in their efforts to supervise use of the Patriot Act because of stonewalling by the Justice Department as to exactly how or where the act was being used.5 Another example of the Administration going over Congress’ head was the drafting of the legal memorandum by John Yoo. The memo stated that the President’s constitutional right to use war powers domestically and take preemptive actions abroad could not be constrained by Congress. Yoo argued that since Congress’ powers are designated as strictly legislative, and the President’s are executive, “the decision to deploy military force is executive in nature…” and is therefore “…exclusively entrusted to the President.”6 We will see this line of constitutional thought employed by the administration later under the topics of interrogation and surveillance.
The first action undertaken with this new AUMF was the invasion of Afghanistan. The war in Afghanistan is generally seen as a war of necessity. This made sense because it was the base of operations for Al-Qaeda and intelligence suggested Osama was hiding in the country. The Taliban government refused to give up Osama Bin Laden following repeated requests by Bush. Many people, particularly Cheney, believed that the Taliban and Al-Qaeda posed an existential threat to American security. Even Bill Clinton ordered missile strikes against Al-Qaeda training facilities in the nineties. Failure to find Bin Laden dead or alive has continued to confound American intelligence though. In the end, Al-Qaeda has at least been weakened and its operational capacities constrained. As the role of the American presence shifted towards national building, the connection between our presence and terrorism has become less visible over time. But for many Americans it remains important that we stay to finish the fight. As far as overt participation in the war against terror, the wars in the Middle East were the most visible and involved. Only later did the world learn of the more covert side of the war on terror that was being waged.
The Secret War
This secret war would turn out to be quite extensive indeed. For the average American, the programs created remained behind the scenes. We were asked by the president to return to normal, to go shopping, and to show the terrorists that no matter what they did, they couldn’t hurt us.7 Now America, like all free countries of the world, does not wish to wage war. Yet we do not hesitate to stand up for ourselves when challenged. Many of the past wars have often involved national sacrifice, a shared sense of purpose. During World War Two, people bought government bonds and recycled materials. Even divisive wars such as Vietnam were paid for through higher taxes. In 1968 for example a 10% surtax was imposed, which raised revenue by about 1% of GDP.8 This time, the Bush administration made a decision to keep the public as disengaged as possible. Sure they promoted patriotism, supporting the troops, and all the other jingoistic ideas, but real sacrifice would not be needed. As it turned out, this policy of disengagement dovetailed perfectly with the behind the scenes programs being undertaken. The less the American public was interested in specifics, the more latitude the administration had to wage the war on terror. A culture of torture and constitutional abuse is easier to create when the world is oblivious.
Following the invasion of Afghanistan, the Bush Administration was presented with a new problem. While it is true that the established laws of war permit the capture and detention of enemy soldiers for the duration of the conflict in the battlefield, the Bush administration invoked new terminology to skirt the law.9 This new enemy would no longer be called a soldier, but an “enemy combatant”. Three critical decisions were made in the initial few months following 9/11. The first was deciding to implement a military commission built from scratch outside of the existing Code of Military Justice. Second, the administration decided to hold detainees at Guantanmo Bay in Cuba in hopes of placing inmates outside of jurisdiction for US courts. Lastly, it was decided that prisoners would not be entitled equal treatment as prisoners of war under the Geneva conventions.10 Many of the incidents and questionable decisions made in later years can be traced back to these three decisions. These decisions essentially dehumanized detainees by denying them rights that other prisoners, and humans in general, receive. Following 9/11 people were more inclined to trust the office of the President and when the Bush administration claimed that these prisoners fell outside the Geneva conventions, the public believed it. The desire for revenge following 9/11 made people more willing to look at these prisoners in a way different than ourselves.
The legal rationale for many of these decisions has been found to originate in the Department of Justices Office of Legal Council. (OLC) The particular memo regarding military commissions is dated November 6th, 2001. The opinion is remarkable for its claims of executive authority. It said that, “even if congress had not sanctioned the use of military commissions to try all offenses…the President, exercising his authority as Commander in Chief, could order the creation of military commissions to try such offenses.”11 Even if Congress had tried to constrain the activities of the Administration at this point, Bush would have likely just ignored them.
Following the invasion of Afghanistan, the Bush administration suddenly found itself with a wealth of potential intelligence. The military had captured dozens of high level Taliban and Al-Qaeda prisoners. It was extremely likely that at least some of these prisoners had operational intelligence on current or future operations. One famous example is Abu Zubaydah. Considered a senior lieutenant to Bin Laden, Zubaydah was placed into the custody of the CIA in early 2002.12 At this point the CIA and other branches of the US government were unsure what the precise rules were about interrogating suspects. In essence, to protect itself from criminal liability, the CIA asked the Administration how far it could go in interrogating suspects. Two men in the OLC, John Yoo and Jay Bybee wrote what are now called the “torture memos”. In response to the requests made by the CIA and White House they wrote a memo that narrowly defined torture as rising to the level of organ failure or death.13 It was so broadly written that essentially any act inflicted on a person that failed to reach those levels would be legal under the law. Again, the president’s executive authority is cited when the memo cites that barring a clear statement in statute otherwise, the President has ultimate authority over the conduct of war.14 The types of methods ultimately used include sleep depravation, slapping, environmental stress, and death threats and mock executions.15 These methods were all later confirmed in a Justice Department report on the OLC conduct in the formation and implementation of the torture memos.
It has often been claimed that abuses were singular and the result of individual guards breaking the rule or commanders giving illegal orders. The abuses documented at Abu Gharib Prison In Iraq are often seen as the defining case of moral and regulatory breakdown. The fact of the matter is that war is always going to involve instances of personal atrocities and error in judgment. The rules we have are in place to do our best to limit this sort of thing from happening and making sure soldiers retain their humanity. But what has happened post 9/11 is something deeper and more profound. No longer is the problem just the actions of a few individuals breaking the law, but that “the United States has developed and refined a callous and calculated method for extracting information and intimidating civilian populations.”16 The culture of torture is self-sustaining, and no less importantly, self-inflicted. When policy is order from the top down, however implicitly, it will infect the thinking at the lower level. Clearly no one ordered the specific treatment of detainees in such a way at Abu Gharib, but all the soldiers had to do was look around them and see that this behavior was allowed and even encouraged.
The process of “extraordinary rendition” has actually been around before 9/11. Previous administrations would generally oblige requests by foreign states to transfer criminals to a state for the purpose of bringing criminal charges. There was cooperation amongst states on the matters of criminal justice.17 Instead it is now most commonly employed by western nations as a way to hold detainees in countries where the local authorities are a little more “coercive” with their interrogation techniques. The United States of course claims that detainees transferred to other countries are not tortured, but are kept there so as to keep them off American soil. In fact by force of law transfers are only allowed following written assurances by the destination state that the prisoner will not be tortured. Former attorney General Alberto Gonzalez has said that, “ We do not transport anyone to a country if we believe it more likely than not that the individual will be tortured.”18 While obviously a denial of knowledge on torture in and of itself, his statement is basically an admission that the renditions were occurring. His ambiguous statement also predictably leaves more than enough room for the United States to claim ignorance to any torture that may occur as a result of transferring detainees. If torture does occur abroad, it can even be brought to court in the United Sates under the Torture Victim Prevention Act, wherein citizens or aliens may bring suit against foreign agents for torture.19 Yet because the act of torture is so hard to prove, it is often allowed to go unpunished. The Bush administration has defended the practice as a valuable tool in the war on terror. It remains unknown how many people have been transferred since 9/11.Continued on Next Page »