Detainee treatment

  • February 17, 2016
    Guest Post

    by Chris Edelson, assistant professor of government, American University School of Public Affairs. Edelson’s book, Power Without Constraint: The Post 9/11 Presidency and National Security, will be published in spring 2016 by the University of Wisconsin Press.

    Most people probably haven’t heard of the unitary executive theory, the radical notion that the president can set aside laws‒even criminal laws‒that, in the president’s view, infringe on executive power. This is a theory that effectively places the president above the law. The Bush-Cheney administration invoked the unitary executive theory to justify, among other things, warrantless surveillance prohibited by the Foreign Intelligence Surveillance Act and torture prohibited by U.S. anti-torture law.

    Vice President Cheney was the administration’s leading advocate for the unitary executive theory, but John Yoo, then a lawyer in the Office of Legal Counsel (OLC), wrote memos explaining it. When Yoo’s once-secret memos were made public, commentators were rightly shocked. As Elizabeth Drew observed, “Yoo…took the view that the president had the power to do pretty much whatever he wanted to do.” In an August 1, 2002, memo signed by his boss Jay Bybee, Yoo concluded that for an act to constitute torture, it must be intended to inflict pain “equivalent to that associated with ‘death, organ failure, or serious impairment of body functions.’” Yoo based this definition on out-of-context language he found in a health care statute. This grotesquely narrow definition of torture allowed the OLC to conclude that waterboarding, a method of controlled drowning in which the lungs are filled with water, was legally permissible. But OLC’s back-up argument went even further, concluding that the president could authorize any interrogation method he or she deems necessary. If the president wants to authorize torture which is, by definition, illegal, the president can simply set aside statutory limits enacted by Congress. This is so, OLC concluded, because the president possesses “inherent constitutional authority” as Commander in Chief to manage military campaigns. “Inherent” authority suggests plenary, unrestricted authority—even extra-constitutional authority that simply cannot be limited by the other branches of government.

    One might think it would now be out of bounds to endorse this theory of unrestrained presidential power. But presidential candidate Ted Cruz has suggested he is very comfortable with the Bush-Cheney-Yoo approach. This is something that ought to make the rest of us very uncomfortable.

  • October 9, 2015
    Guest Post

    by Chris Edelson, assistant professor of government, American University School of Public Affairs. Edelson is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press. His second book, Power Without Constraint: The Post 9/11 Presidency and National Security, will be published next year by the University of Wisconsin Press.

    Sen. John McCain said of waterboarding that “it is not a complicated procedure. It is torture.” Experts, including those who have experienced waterboarding, agree. Waterboarding is sometimes incorrectly described as “simulated” drowning. In fact, “[t]here is no way to simulate the lungs filling with fluid, and the victim does not need to be convinced physiologically. The [person being waterboarded is] in the process of drowning.” Those who have experienced waterboarding describe it as “controlled death.” The United States has prosecuted both Americans and members of foreign militaries for waterboarding prisoners.

    The Bush administration relied on implausible statutory definitions and dangerous theories of unrestrained executive power to conclude that it could authorize waterboarding. Since waterboarding is torture, it is a crime, and waterboarding (since it is torture) cannot be justified by emergency. Apart from the fact that it is illegal, there is no evidence that waterboarding produces reliable intelligence. Some who are waterboarded simply tell their interrogators anything they think will get the waterboarding to stop. A Senate report concluded that Khalid Sheikh Muhammed provided fabricated information after being subjected to waterboarding and other interrogation methods.

    To his credit, President Obama has rejected waterboarding, correctly identifying it as torture. He issued an executive order in 2009 that would rule out interrogation methods not authorized by and listed in the Army Field Manual (the manual specifically prohibits waterboarding). However, his administration has not prosecuted anyone for authorizing or carrying out waterboarding.

  • March 12, 2015
    Guest Post

    by Peter Jan Honigsberg, professor of law at the University of San Francisco and founder and director of the Witness to Guantanamo project

    Most Americans pay scant attention to Guantanamo.  In fact, many Americans believe it is closed or only houses convicted terrorists.  However, Guantanamo is still open, holding 122 men, 55 of whom have been cleared for release.

    As little as Americans know about Guantanamo, they know even less about the lives of detainees after they have been transferred out of Guantanamo.  The more fortunate detainees are resettled to their home country, where they can reunite with and be supported by their families.

    However, a number of the detainees cannot return home because of the instability of their home country, their home country does not want them, or they may be tortured or executed on their return.  These men must wait for other nations to accept them.  Initially, nations wanted to help President Obama close Guantanamo and agreed to accept prisoners.  However, as confidence in Obama’s initial pledge to close the detention center has waned, fewer nations are willing to reach out and receive former detainees.

    Nevertheless, because of the tenacity of Special Envoy Cliff Sloan – the State Department official tasked with resettling detainees from July 2013 to December 2014 – several countries have accepted detainees in the past 18 months.  In November 2014, Slovakia resettled two detainees.  One was Hussein Al-marfadi, originally from Yemen.

    In February 2015, the Witness to Guantanamo project interviewed Al-marfadi in a town in central Slovakia.  Although physically and psychologically scarred from 14 years of torture and brutal treatment at Guantanamo, he is an engaging, even-tempered and thoughtful man.  He was never charged with a crime and had been cleared for release years ago.

    Al-marfadi is a born storyteller with an amazing aptitude for details.  Unlike many detainees the project has interviewed, Al-marfadi provided a day-by-day description of his experiences, including comprehensive accounts of the torture and unspeakable treatment he suffered.  Interviews with detainees generally last for two hours.  His interview covered six-plus hours over two days.  Al-marfadi told W2G that it was important for him to tell his complete story.  He explained that his story was not only for history but also for the men still in Guantanamo.

  • December 12, 2014
    Guest Post

    by Chris Edelson is an assistant professor of government in American University's School of Public Affairs. He is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press.

    In his piece, “Torture Is Who We Are,” Peter Beinart rightly exposes the Pollyanish mindset that would describe the United States as “intrinsically moral” with torture that has occurred since 9/11 “represent[ing] an aberration.” Beinart is of course right to point out that post-9/11 waterboarding is hardly the first time in U.S. history that Americans have been guilty of torture -- he cites slavery, waterboarding of Filipino prisoners during the Spanish-American War and electric shocks delivered to the genitals of prisoners during the Vietnam War as some grotesque examples. There are others. Civilian law enforcement authorities used waterboarding and sleep deprivation on domestic criminal suspects decades before 9/11. A U.S. soldier waterboarded a Vietnamese prisoner in 1968

    So Beinart is right in one sense -- torture is not something new in American history. It cannot be seen as an aberration from a previously morally upright, torture-free history. But there is one important difference that he misses, that makes his analysis more pessimistic than it need be.  Torture by Americans is not new. The idea that Americans can torture with impunity, however, is new. In each of the examples I listed, there were consequences for the torturers. A Texas sheriff and his deputies who waterboarded a criminal suspect were themselves convicted and sentenced to prison. The U.S. soldier who waterboarded a Vietnamese prisoner was court-martialed. When law enforcement authorities subjected a suspect to questioning for 36 hours without sleep, the Supreme Court threw out a conviction based on the coerced confession that had been extracted.  The same is true for one of Beinart’s examples.  A U.S. military officer who waterboarded Filipino prisoners was court-martialed, suspended from command for one month and fined $50.  Moreover, before 9/11, even when torture was not punished, no one proudly defended it or attempted to justify it -- instead, it was swept under the rug, as often happened during the Vietnam War. There is one essential exception to emphasize: slavery.  Slaveowners openly tortured slaves with impunity.  This is of course a central fact of American history, not truly an “exception”, except in the limited sense that it varies from the other examples I have given where torture before 9/11 was either punished or else covered up.  What has changed since 9/11 as compared with most of the examples noted is that there are now people willing, even proud, to defiantly defend torture

    Beinart is correct that “America has tortured throughout its history.” Before 9/11, however, there were usually consequences for torture: torturers faced prosecution and punishment in the criminal justice system. This is part of what it means to be true to the rule of law: when the law is violated, offenders are punished. No country can guarantee that all of its law enforcement officials, soldiers, or government officials, will refrain from torture. But countries that uphold the rule of law can guarantee that torturers will be prosecuted. 

  • December 10, 2014
    Guest Post

    by Chris Edelson, an assistant professor of government in American University's School of Public Affairs. He is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press.

    Following release of the redacted Senate Intelligence Committee's majority report on torture, critics are insisting that the report overlooks the value of waterboarding, sleep deprivation and other interrogation methods better suited to the Spanish Inquisition than a constitutional republic. Those who defend torture tend to emphasize its supposed efficacy in extracting intelligence that prevents terrorist attacks.  In fact, those who insist torture saves lives have never identified evidence that proves their case.

    More importantly, however, arguing about the efficacy of torture point obscures two essential points: (1) torture, by definition, is illegal and (2) the argument in defense of torture is a rejection of the rule of law.

    Defenders of the Bush administration’s tactics have helped make these points clear. For example, on yesterday's “Morning Joe,” former Bush communications chief Nicolle Wallace declared that she “pray[s] to god that until the end of time, we do whatever we have to do to find out what’s happening [in terms of planned terrorist attacks].” She suggested that we must trust the government to do whatever it believes is necessary to protect the nation -- in her words, “I don’t care what [the government] did” after 9/11 to prevent another terrorist attack -- as long as it works.                                         

    Wallace is an effective and powerful speaker, and I thought her bombastic approach caught her sparring partner, Howard Dean, off guard and made for good TV. But it's worth taking more time than cable TV allows in considering the implications of what she said.

    Wallace's argument is a case for handing over power to the executive branch, assigning it complete power to defend the nation, unrestrained by law. That is, of course, not what the framers of the U.S. Constitution had in mind when they created a system of checks and balances designed to give government enough power to carry out is responsibilities but also to set definable limits on that power. It is, however, precisely how government officials who authorized torture justified their actions. In once-secret memos written on August 1, 2002, former Justice Department lawyers John Yoo and Jay Bybee concluded that waterboarding, sleep deprivation and other methods CIA interrogators wanted to use on suspected al Qaeda leader Abu Zubaydah could not be defined as torture. Their view depended on the preposterous notion that severe physical pain necessary to constitute torture under U.S. criminal law could be defined by reference to health care statutes. But it is the backup argument that Yoo and Bybee relied on that is most chilling: they concluded that President George W. Bush could authorize any interrogation methods he deemed necessary, even if such methods violated U.S. criminal law. The president, they said, could not be constrained by Congress in this area.  

    That is the language of an executive branch above the law, the same language Wallace uses when she says that she doesn't care what the government did to prevent terrorist attacks after 9/11, that it must do whatever is necessary. Bush administration lawyers agreed, concluding that the executive branch is not constrained by law.