Geopolitical Monitor - Backgrounders

GeopoliticalMonitor.com
May 13, 2009

1. Executive Summary
2. Development of American Torture Techniques
3. Development of Legal Rationale
4. The Substance of American Torture
5. Where it took place
6. Timeline

1. Executive Summary

On February 7^th 2002, President Bush signed off on a memorandum that rendered Taliban and Al Qaeda detainees in U.S. custody bereft of protections afforded by the Third Geneva Convention [1].  In the months and years that followed, abuse and torture became widespread, eventually culminating in the now universally recognized and abhorred imagery of Abu Ghraib. This backgrounder seeks to explore the origins and breadth of American torture during the Bush presidency by compiling all relevant information from recently de-classified memos and reports.

2. Development of American Torture Techniques

Most of the abusive techniques used by American interrogators can be linked back to training and advice from the Joint Personnel Recovery Agency (JPRA). The JPRA is a Department of Defense (DoD) agency that oversees Survival Evasion Resistance and Escape (SERE), a training regimen that uses physical and mental abuse to simulate the kind of treatment American soldiers might receive once they are captured and subjected to torture. Most of the SERE techniques, such as nudity, stress positions, hooding, sleep deprivation, temperature exposure, face slapping, and exposure to flashing lights and loud music have been adapted from Chinese Communist techniques that were used to elicit false confessions from American POWs during the Korean War [1]. In December of 2001, the DoD General Counsel’s Office contacted the JPRA requesting information on detainee ‘exploitation’ techniques, thus beginning an extended period of relying on SERE resistance training as an operational basis for offensive interrogations.

3. Development of Legal Rationale

On August 1^st 2002, the Department of Justice Office of Legal Council (OLC) issued two legal opinions that would underpin most of the future legal rationalizations for the use of torture. The first opinion, also known as the first Bybee memo, concluded that torture is not simply the infliction of any physical pain, but more specifically the “intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result” [2].

As far as psychological damage is concerned, Bybee concluded that for abusive interrogation techniques to be classified as torture, they must inflict long term mental harm lasting months or even years [1,2].  Given the considerable difficulty in quantifying subjective terms such as ‘intense pain’ and ‘mental harm’, the memo effectively obscures the concept of torture enough to afford a legal justification for American interrogators.

The second Bybee memo, issued on the same day, was written in response to a CIA request for clarification on which techniques could legally be employed during the Abu Zubaydah interrogation. The memo authorizes the use of ten techniques, claiming that they do not violate American laws prohibiting the use of torture. These techniques are: attention grasp, walling, facial hold, facial slap, cramped confinement, wall standing, stress positions, sleep deprivation, insects placed in a confinement box, and the water board [3].

On January 15^th 2003, Secretary Rumsfeld ordered the establishment of a Working Group charged with reviewing the legal ramifications of aggressive interrogation techniques. The Working Group shunned dissenting opinions from military and civilian lawyers, instead basing its ultimate approval of abusive techniques on yet another OLC legal opinion. This time the opinion belonged to OLC Deputy Assistant Attorney General John Yoo, whom in a memo dated March 14th 2003 declared that the Justice Department would not prosecute abusive interrogators, and that if for any reason it did, the justification of necessity or self-defense would provide a sufficient defense [4].

4. The Substance of American Torture

A leaked International Committee of the Red Cross (ICRC) report has provided the public with many sobering details regarding the torture of fourteen ‘high value targets’ in various countries. Each detainee describes a process of abuse that is most intense directly after arrest, only to level out over time into more humane treatment [5]. Systematic degradation and threats were common inside and outside of the interrogation room. Some of the reported threats include:  U.S. soldiers raping the detainee’s family members, the detainee being sodomized or infected with the HIV virus, or the detainee eventually being subjected to a ‘no rules’ interrogation [5].

During transport from their country of arrest to Afghanistan and subsequently to what are presumed to be ‘black sites’, detainees wore a blindfold, goggles, and a diaper while they were chained to the plane floor, lying down for up to thirty hours.  Many reported being shackled in standing positions and forced to defecate on themselves. Sheikh Khalid Mohammad alleged that he was once shackled in a stress standing position for one month at his third place of detention [5].

In the ICRC report, Abu Zubaydah recalls being slammed into a concrete wall during one of his interrogations. Later, he was again brought out and slammed into a sheet of plywood that had been placed against the same wall. This experience lead him to surmise that American interrogators were ‘playing it by ear’ and making up a standard operating procedure as they went along [5]. Abusive techniques were used, experimented with, and then combined with other techniques for maximum effect. Here are some of the abuses outlined in the report:

Water boarding: Three of the fourteen detainees alleged that they were repeatedly water boarded.  According to the New York Times, Abu Zubaydah and Khalid Shaikh Mohammed were water boarded a total of 266 times [6]. Ironically, Zubaydah’s subsequent incontinence would qualify his water boarding as torture under the first Bybee memo, as it “resulted in the loss of a significant body function” [5,2].

Sleep deprivation: One of the CIA’s most valued techniques, and the one it reportedly fought hardest to keep [5, 7]. It was used in combination with physical techniques such as the face slap to wear the detainee’s resistance down. At one point, the CIA was authorized to keep prisoners awake for up to eleven days [7].

Beating by use of a collar: A collar is placed around the detainee’s neck, and then used to slam them against walls [5].

Beating and kicking: Nine of the fourteen detainees in the ICRC report alleged having been beaten regularly in the early phase of their internment [5]. One detainee reportedly took a severe beating so that a picture could be taken to use as a threat on other prisoners.

Confinement in a box: Abu Zubaydah recalled being held between water boarding sessions in a box specifically designed to constrain his movement [5].

Prolonged nudity: Eleven of the fourteen detainees allege being subjected to long periods of forced nudity, ranging from several weeks to several months. Detainees were given clothes depending on how cooperative they were [5].

5. Where it took place

While it seems that initial attempts to develop a procedural and legal basis for torture had the interrogation of ‘high value’ prisoners in mind, abusive interrogation techniques rapidly spread out through many branches of the U.S. military and intelligence services.  Secretary Rumsfeld’s approval and subsequent rescinding of aggressive interrogation techniques created a great deal of confusion in Afghanistan and Iraq as to what the standard operating procedure was [1]. The January 2003 CENTCOM memo on interrogation techniques in Afghanistan still remains classified, but it is known that the memo authorizes nudity and, “the exploitation of the Arab fear of dogs” [1].

By the time that the Rumsfeld-initiated Working Group re-authorized aggressive techniques based on the legal opinion of John Yoo, most of the techniques outlined in the ICRC report had already made their way into standard operating procedure for U.S. forces operating in Iraq [1]. Thus, torture techniques became widely accepted as standard interrogation procedure in Afghanistan and Iraq, eventually leading to the well publicized Abu Ghraib incident.

Abuses also occurred at Guantanamo Bay, which seems to have served as one of the ‘black sites’ used for interrogation of the fourteen ‘high value’ detainees described in the ICRC report [1,5]. It was a request from Guantanamo Bay for authorization to employ aggressive interrogation techniques in October 2002 that triggered the series of events leading to Rumsfeld signing off his approval in December 2002 [1]. Afghanistan and some of the countries of arrest also served as ‘black sites’ for the interrogation of ‘high value’ detainees [5].

6. Timeline

Dec 2001 - DoD General Counsel Office feels out SERE for information on detainee ‘exploitation’

Feb 7, 2002 - President Bush signs memorandum declaring Taliban and Al Qaeda prisoners not covered by Third Geneva Convention

Mar 2002 - SERE training starts being used as basis for development of offensive techniques

Spring 2002 - CIA requests policy approval from NSC to begin aggressive interrogation program for high level Al Qaeda detainees (Rice, Tenet, Rumsfeld, Ashcroft confirmed to have participated)

Aug 2002 - OLC issues first and second Bybee memos (Alberto Gonzales was consulted)

Sep 2002 - JPRA reps start using SERE training to train interrogators at Guantanamo Bay

Oct 2002 - Request made to use aggressive techniques on detainees at Guantanamo Bay

Oct-Dec 2002 - Various branches of U.S. military make legal concerns over new techniques known, a resulting legal review initiated by the Joint Chiefs of Staff Legal Counsel is shut down by William Haynes II.

Dec 2002 - Personnel from FBI register strong opposition over interrogation techniques being employed on Mohammed Al-Khatani to DoD General Counsel Office

Dec 2002 - Rumsfeld gives blanket approval for the use of aggressive techniques, does not provide any guidelines

Jan 2003 - Under legal pressure from Navy General Counsel Alberto Mora, Rumsfeld revokes authorization for the use of aggressive techniques, forms a Working Group of sympathetic legal opinions to explore legal implications of torture

Jan 2003 - CENTCOM interrogation technique memo issued, casting some of the SERE techniques as standard operating procedure

Mar 2003 - OLC lawyer John Yoo’s memo used as basis for working group’s approval of many of the SERE techniques

Apr 2003 - Rumsfeld re-authorizes use of 24 techniques, says he will authorize harsher SERE techniques on an as-needed basis

Sep 2003 - Special Forces in Iraq operate using interrogation procedures written after Rumsfeld’s first authorization; these procedures eventually trickle down to all forces in Iraq

Dec 2003 - Jack Goldsmith, new Assistant Attorney General for the OLC, rescinds Bybee and Yoo memos

Mar 2004 - Charges are laid on guards at Abu Ghraib

Jun 2006 - U.S. Supreme Court rules 5 to 3 against the use of military tribunals, states that they violate Geneva Conventions and U.S. law.

Jul 2006 - Bush administration announces that all prisoners held by U.S. are entitled to humane treatment under the Geneva Conventions

According to the ICRC report, as of 2006 no one remains in the CIA secret detention program.

7. End Notes

[1] Inquiry into the Treatment of Detainees in U.S Custody. 11/20/2008. Senate Armed Services Committee. http://armed-services.senate.gov/Publications/EXEC%20SUMMARY-CONCLUSIONS_For%20Release_12%20December%202008.pdf

[2] Memorandum for Alberto R. Gonzales, Counsel to the President. 08/01/2002. U.S Department of Justice, Office of Legal Counsel. http://www.washingtonpost.com/wp-srv/nation/documents/dojinterrogationmemo20020801.pdf

[3] Bybee, J. Memorandum for John Rizzo Acting General Counsel of the Central Intelligence Agency. 08/01/2002. U.S Department of Justice, Office of Legal Counsel.  http://www.fas.org/irp/agency/doj/olc/zubaydah.pdf

[4] Yoo, J. Memorandum for William J. Haynes II, General Counsel of the Department of Defense. 03/14/2003. U.S Department of Justice, Office of Legal Counsel.
http://www.aclu.org/pdfs/safefree/yoo_army_torture_memo.pdf

[5] ICRC Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody. 02/14/2007. International Committee of the Red Cross, Regional Delegation for USA and Canada. http://www.nybooks.com/icrc-report.pdf

[6] Shane, S. ‘2 Suspects Waterboarded 266 Times.’ The New York Times. 04/21/2009. http://www.nytimes.com/2009/04/21/world/21detain.html?ref=global-home

[7]  Miller, G. ‘Memos Shed Light on CIA Use of Sleep Deprivation.’ The Los Angeles Times. 05/10/2009. http://www.latimes.com/news/nationworld/nation/la-na-interrogate10-2009may10,0,1512131.story

[8] Babington, C & Abramowitz, M. ‘U.S Shifts Policy on Geneva Conventions.’ The Washington Post. 07/12/2006.  http://www.washingtonpost.com/wp-dyn/content/article/2006/07/11/AR2006071100094.html

Tags:  Covert Ops - Middle East - United States - Pakistan - Iraq - Afghanistan