Secrecy and Torture

The fundamental human rights are not open for negotiation. But what do we do when a democracy starts to legalize torture? Larry Siems, writer and the Director of Freedom to Write and International Programs at PEN American Center in New York, discusses in this text how USA legalised torture after 9/11.

April 17 2012 Text: Larry Siems

It began with one document.

On September 17, 2001, six days after the terrorist attacks in Washington, DC, President George W. Bush sent a 12-page Memorandum of Notification to his National Security Council. That memorandum, we know now, authorized the CIA to set up and run secret prisons. We still don’t know exactly what it says: CIA attorneys have told a judge the document is so off-limits to the courts and the American people that even the font is classified. But we do know what it did, It literally opened a space for torture.

Thanks to a Freedom of Information Act lawsuit—a lawsuit The New York Times has called “among the most successful in the history of public disclosure”—we now know much of what happened in those secret spaces the Bush administration created. Under that litigation, the American Civil Liberties Union gathered nearly 140,000 formerly classified documents from the Department of Defense, the Justice Department, and the CIA that detail the abuse of prisoners in US custody in the “War on Terror.” My job, as the author of the website www.thetorturereport.org and then of the book The Torture Report: What the Documents Say About America’s Post-9/11 Torture Program, was to dig through that incredible trove of documents and figure out for myself what, exactly, my country had done.

Here is what I learned.

Our highest government officials, up to and including the President, broke international and US laws banning torture and cruel, inhuman, and degrading treatment. Worse, they made their subordinates in the military and civilian intelligence services break those laws for them.

When the men and women they asked to break those laws protested, knowing they could be prosecuted for torture, they pretended to rewrite the law. They commissioned legal opinions they said would shield those who carried out the abuses from being hauled into court, as the torture ban requires. “The law has been changed,” detainees around the world were told. “No rules apply.”

Then they tortured. They tortured men at military bases and detention centers in Afghanistan and Iraq, in Guantánamo, and in US Navy bases on American soil; they tortured men in secret CIA prisons set up across the globe specifically to terrorize and torture prisoners; they sent many more to countries with notoriously abusive regimes and asked them to do the torturing. At least twice, after the torturers themselves concluded there was no point to further abuse, Washington ordered that the prisoners be tortured some more.

They tortured innocent people. They tortured people who may have been guilty of terrorism-related crimes, but ruined any chance of prosecuting them because of the torture. They tortured people when the torture had nothing to do with imminent threats: they tortured based on bad information they had extracted from others through torture; they tortured to hide their mistakes and to get confession; they tortured sometimes just to break people, pure and simple.

And they conspired to cover up their crimes. They did this from the start, by creating secret facilities and secrecy regimes to keep what they were doing from the American people and the world. They did it by suppressing and then destroying evidence, including videotapes of the torture. They did it by denying detainees legal process because, as the CIA’s Inspector General put it in a 2004 report, when you torture someone you create an “Endgame” problem: you end up with detainees who, “if not kept in isolation, would likely divulge information about the circumstances of their detention.”

They managed all this, for a time, through secrecy—a secrecy that depended on the aggressive suppression of two groups of voices.

Over and over again, in Afghanistan and Iraq, in Guantánamo, in secret CIA black sites and at CIA headquarters, in the Pentagon, and in Washington, men and women recognized the torture for what it was, and refused to remain silent. They objected, protested, and fought to prevent, and then to end, these illegal and immoral interrogations. While the President and his top advisors approved and encouraged the torture of prisoners, there was dissent in every agency, at every level.

The documents are full of these voices. In fact, it is thanks to these dissenters that much of the documentary record exists. From emails among FBI agents sharing their shock over scenes they had witnessed in interrogation booths in Guantánamo, to letters and memoranda for the record, to major internal investigations, the documents show that those who ordered and carried out the torture did so despite constant warnings and objections that their actions were ineffective, short-sighted, and wrong. It is no wonder that so many of these documents were suppressed.

Alongside the dissenters, another group of voices surfaces in these once-classified materials: the men we tortured. Theirs are the voices the entire system of incommunicado detention and closed tribunals was constructed to censor, and it worked: to this day, few Americans can identify more than a handful of detainees by name; fewer still know how far from the “worst of the worst” the vast majority of those we tortured turned out to be.

Torture dehumanizes. But that only extends a process of dehumanization that must take place in order for abuse to happen: it is impossible to torture those whose humanity we recognize. In joke-filled letters to their attorneys, in frank and vivid testimony in tribunal transcripts, in startlingly naïve and in powerfully emotional exchanges with interrogators, images emerge not of the maniacal and monolithic and monstrous, but of distinct and recognizable individuals. To hear these voices is to begin to reverse the terrible dehumanization the documents chronicle.

 

*     *     *

Last month, I was once again in a federal courtroom in New York, watching one of the last chapters in the remarkable Freedom of Information Act saga that has unearthed those 140,000 torture documents. The argument that day centered on whether the CIA would finally be required to release a single photograph of Abu Zubaydah, who was captured 10 years ago this week and who became the first subject of the Bush administration’s experiments with “Enhanced Interrogation Techniques.”

The CIA has gone to extreme lengths to conceal images of Abu Zubaydah and his treatment, first in a secret CIA dungeon in Thailand and later in another CIA black site in Poland—lengths that include destroying 92 videotapes of his interrogation and torture. It has paid no price for destroying those tapes, or for holding Abu Zubaydah for more than four years in its network of secret prisons, or for his well-documented White House-orchestrated torture, which included 83 episodes of waterboarding, the last one overseen by a Washington official who flew to the black site because the administration refused to believe his interrogator’s conclusion that he was not withholding information.

The court has not yet ruled on the question of the photograph. But there is little reason to believe the CIA will now be required to turn over a picture that very well may offer graphic evidence of abuse—and at the very least would drive home the simple fact that the target of so much calculated and extreme mistreatment was a single, and at the time utterly defenseless, human being.

But we should hardly need that photograph. We already have Abu Zubaydah’s own descriptions of his ordeal, in his statement to the International Committee to the Red Cross and in his testimony (still heavily redacted) to the Guantánamo tribunals. Those descriptions match exactly the treatment the CIA proposes and Bush’s lawyers approved in the infamous August 1, 2002 torture memos. We don’t have the videotapes, but we do have the list of cables that flowed back and forth between the Thai black site and Washington reporting on the progress of Abu Zubaydah’s interrogation. And we have the CIA Inspector General’s appalled reaction after he flew to Thailand to view those tapes.

It is one thing to be in the dark; it is another thing to have the record of what happened in the darkness right in front of us, and fail to reckon with it. That, sadly, is the situation in the United States today.

This week, the Polish newspaper Gazeta Wyborcza reported that prosecutors in Poland have charged the country’s former top intelligence official with depriving Abu Zubaydah and others of their freedom and allowing corporal punishment in the secret prison the CIA set up and ran near the village of Szymany.

The CIA shipped Abu Zubaydah from Thailand to Poland on December 4, 2002. When he arrived in Szymany—hooded, diapered, shackled—and stepped onto the tarmac with his armed, CIA-contracted escorts, he was setting foot in a country with one of the newest constitutions in the world, a nation that in the moving words of that document’s preamble, remains “mindful of the bitter experiences of the times when fundamental freedoms and human rights were violated in our Homeland.” Ratified in 1997—barely five years before the CIA's plane landed—Poland 's constitution declares simply, “No one may be subjected to torture or cruel, inhuman, or degrading treatment or punishment. The application of corporal punishment shall be prohibited.”

That the United States operated secret prisons anywhere on earth just so we could place our prisoners and jailors outside the reach of U.S. laws prohibiting torture is outrageous, of course. But there’s something especially perverse about basing one of these facilities in a country whose “bitter recent experiences” include first Nazi occupation and extermination camps and then four decades of communist oppression. Out of those experiences, the people of Poland created a state that embraces, without reservation, the absolute ban on torture and cruel, inhuman, and degrading treatment, and the first thing the United States does is degrade that state by setting up and running a secret torture chamber on Polish soil.

How would Americans feel if we learned our government had secretly allowed a foreign government to violate some of our most basic laws and fundamental principles on American soil? Shouldn’t we be just as outraged to know our government conspired to violate those laws and principles abroad? That it did so in secret no longer absolves us: plenty of the record is public now; now we know. And with Poland’s former spy chief under indictment for facilitating the CIA’s torture, and with similar investigations under way in several other countries, we, and the world, will soon know more.