By Michael Ratner and the Center for Constitutional Rights
In response to the attacks of September 11, 2001, top officials of the Bush administration authored an era of torture, rendition and secret detention—criminal acts for which they must be held accountable. In his new book, attorney Michael Ratner lays out the prosecutor’s case for the war crimes trial that may never happen. Following is an excerpt from his opening argument.
This is an unusual trial. It is occurring in the form of a book that lays out the evidence that high-level officials of the George W. Bush administration have ordered, authorized, implemented and permitted war crimes, in particular the crimes of torture and cruel, inhuman and degrading treatment. We are proceeding to build this case against what we call the “torture defendants” in this way because at this point there appears to be no other means of holding high Bush administration officials criminally responsible for their war crimes.
The government did launch several investigations in the wake of the public outcry over Abu Ghraib. The Taguba, Schlesinger and Fay-Jones reports criticized the interrogation methods and confirmed that the entire chain of command was responsible for the torture and abuse at the Iraqi prison.
Efforts made to begin investigations in other countries have so far been unsuccessful. The effort by the Center for Constitutional Rights (CCR) in Germany failed. A case filed in France in October 2007 is pending, but the French prosecutor failed to arrest former Secretary of Defense Donald Rumsfeld when he was in Paris or issue a warrant to obtain his testimony. Efforts to get Congress to hold the Bush administration accountable have also not been successful. There have not even been serious hearings on the responsibility of high Bush administration officials for the planning and implementation of the torture program.
In these circumstances, there is an obligation to set forth the facts, give the defendants their chance to defend themselves and make a determination of whether they are guilty. We cannot sit idly by while high-level officials in the most powerful country in the world are allowed to torture with impunity. We cannot put the genie back in the bottle and stop what has occurred. But perhaps we can deter similar conduct if we send a message to the world that torturers, like the pirates of old, are enemies of all humankind and will be brought to justice no matter their power or high office.
The Torture Program
We will present you, the readers who will be the jury, with overwhelming evidence that the defendants are responsible for heinous war crimes. Torture committed during a time of war is a war crime. The torture revealed in the photographs at Abu Ghraib, sadly, is illustrative of only a small part of a torture program implemented by the defendants after 9/11. It was a program that took place throughout the world: in Afghanistan, Iraq, Guantánamo, secret CIA prisons and other places unknown.
That torture program has not ended, and the Bush administration insists it will continue. President Bush, in September 2006, while claiming that he had not authorized torture, insisted that his administration could still employ an “alternative set of procedures” when prisoners stopped talking. These include techniques such as sleep deprivation, stress positions including standing for long periods of time, raising and lowering of temperatures and even the classic torture of waterboarding. The New York Times revealed that even after the administration publicly repudiated torture, it secretly issued opinions condoning waterboarding and other supposedly banned techniques. Evidence also comes from Vice President Dick Cheney. In October 2006, a TV reporter asked, “Would you agree a dunk in water is a no-brainer if it can save lives?” Cheney responded, “Well, it’s a no-brainer for me.” As the evidence will demonstrate, Cheney was one of the key architects of the torture program.
President Bush and Vice President Cheney have not been named as defendants. This is not because of a lack of evidence against them. But Bush, as head of state, and Cheney, as successor head of state, have immunity from criminal indictment while they are in office for acts that occurred during their tenure. The moment their terms are over, they can join the others as defendants. However, in this trial they have been named as unindicted co-conspirators for their role in the conspiracy to commit torture.
Any torture is by definition barbaric. The Bush administration developed and implemented a scientific torture program, one that maximized the destruction of the human personality. You will be shocked by what you see and what you read about this torture program. Human beings were stripped, hung from ceilings, beaten, threatened and attacked by dogs, sexually abused, subjected to hot and cold temperatures, deprived of food and sleep, held in isolation day after day, month after month, and waterboarded. More than occasionally, they died from torture.
This torture was not carried out by just a few “bad apples,” as the defendants would have you believe. It was policy and practice ordered and approved at the highest levels of the administration by the defendants sitting before you. The defendants have attempted to divert attention from their own actions by prosecuting soldiers, particularly those photographed in the torture photos. To date no one above the rank of lieutenant colonel has been prosecuted—and the one officer who has been prosecuted, Steven Jordan, was not found guilty of any charges relating to torture. That is why we are here. We, the public, are the court of last resort. Our opinion perhaps can force some existing court to bring highlevel officials of the Bush administration, the perpetrators of torture, to justice.
The Bush administration has made efforts, through public statements and publicly released memos, to mount a defense against the serious accusations of torture made against it. On the one hand, it claims it does not torture and treats prisoners humanely. As you will see, it makes this claim because it has redefined torture and inhuman treatment so that the coercive interrogations it employs do not come within what courts and treaties always found to be torture. At the same time, the administration insists that it needs harsh interrogation tactics, and that President Bush, in the name of national security, may employ torture. In fact, his lawyers argue that there are no limits to the cruelties he can impose on others if he thinks he needs to do so to make us safer.
The evidence will refute each of these so-called torture defenses. The administration’s assertion that it is not bound by any law is simply false. Democracies are built on certain principles, and a key principle is that the authority of the executive is not above law. Nor is the defense that torture can be employed in self-defense valid. Torture is immoral and illegal no matter the claimed necessity
I will outline the torture program of the Bush administration. This will give you an overview of the evidence. We will follow this brief introduction with proof that is undeniable, much of it from documents written by the defendants themselves, that these crimes were integral to a policy and practice authored and approved at the highest levels. Its direct victims were in the thousands. Its indirect victims were not only those who were tortured but all of us who care about morality, a government under law and our own safety.
We begin with the law: the basic prohibition against torture and cruel, inhuman and degrading treatment. These prohibitions are reflected in various treaties and statutes that were and are binding on the defendants. These include the international Convention Against Torture, the Geneva Conventions, the U.S. War Crimes Statute and the federal Torture Statute. U.S. statutes provide long prison sentences and even the death penalty for those who torture. These laws prohibit torture in any circumstances, by anyone—even if ordered or committed by a head of state. These laws, as well as legal precedents, also define the types of prohibited treatment. The Convention Against Torture defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession.” International law, such as the Geneva Conventions, also prohibits less severe physical or mental pain.
Torture and war crimes are considered so serious by the international community that they constitute an international crime that can be prosecuted and punished, irrespective of where, by whom, or against whom the crime was committed. For such international crimes, the principle of universal jurisdiction applies—they can be prosecuted by any country.
The first evidence we will present to you is example after example of the use of torture—at Guantánamo, at Abu Ghraib, and at U.S. prisons and secret sites all over the world.
For example, CCR represents Guantánamo detainee Mohammed al Qahtani in a case in which defendant Donald Rumsfeld was directly involved. The case was documented in a Guantánamo interrogation logbook. Al Qahtani was interrogated on 48 of 160 days for 18 to 20 hours a day. He was stripped, made to stand with spread legs in front of female guards and mocked (so-called “invasion of space by a female”). He was forced to wear women’s underwear on his head and to put on a bra; he was threatened by dogs and led on a leash; his mother was called a whore. In December 2002, al Qahtani was the target of a faked abduction and rendition. He was kept in the cold and given substances intravenously without access to a toilet. At one point his heart rate fell to 35 beats per minute. Rumsfeld and Maj. Gen. Geoffrey Miller personally ordered practices that aimed to keep al Qahtani awake more than 20 hours per day for at least two months, but probably longer.
These interrogation techniques were outlined step by step in a memo. The December 2, 2002, memo, signed by Rumsfeld, allowed techniques like hooding, stripping, dogs, and sleep deprivation. At the end of this memorandum there is a note handwritten by Rumsfeld, which referred to the fact that prisoners were left standing in stress positions for up to four hours. In the note he wrote: “I stand 8 to 10 hours a day. Why is it limited to 4 hours?”
This is just one example. It is by no means unique; nor does it reflect the worst of the treatment. There are literally thousands of cases of such torture. As you will discover, these tortures did not happen by chance, they did not happen because of the fog of war, and they did not happen because of a few rogue soldiers. The torture of these human beings was authorized and directed by the very defendants that are before you.
Going to the Dark Side: The Case Against the Defendants
The defendants did not hide their plans, and they gave us warnings. For example, shortly after 9/11, Vice President Cheney practically acknowledged that unlawful methods would be employed. In an interview on national TV, he stated: “We have to work the dark side, if you will.” Beyond public statements of their intentions, their memoranda, orders and actions deeply implicate the defendants in the authorization of torture.
On January 19, 2002, defendant Rumsfeld informed the chairman of the Joint Chiefs of Staff, Richard B. Myers, that those detained in the war against Afghanistan would not be granted prisoner of war status as would normally be required by the Geneva Conventions. They would not even be given hearings to determine if they were prisoners of war. The government would “mostly treat [the prisoners] in a way somewhat in accordance with the Geneva Conventions, namely, to the extent appropriate.” With these few words, defendant Rumsfeld opened the door to torture.
This Rumsfeld memo was followed by an extraordinary memo to the president written on January 25, 2002, by defendant Alberto Gonzales in support of Rumsfeld. This memo paved the road to Abu Ghraib. It said that we had to interrogate people, we had to give them summary trials, and Geneva’s provisions were obsolete because while they allow you to interrogate, they don’t allow you to treat people inhumanly. Gonzales noted that the U.S. War Crimes statute prohibits violations of the Geneva Conventions. So he said to the president, in effect: “Look, some prosecutor may come along in the future and decide that the way we’re treating people is inhuman, and the best way to avoid prosecution is simply to say the Geneva Conventions don't apply. If they don't apply, we can’t violate them."
The president agreed with this memo and on February 7, 2002, issued a public statement denying prisoner of war status for the Taliban and any Geneva Convention protection to alleged terrorists. He said all detainees should be treated humanely— but, and it is a big but—only “to the extent military necessity required.” In other words, if torture was “required” by “necessity,” it was permissible.
Defendant Gonzales, with a push from Cheney and defendant David Addington, asked for more memos to help make his argument that torture was legal; the most famous was called the Bybee/ Yoo memo. That memo would also be used to immunize those who tortured.
In the memo he wrote with John Yoo, dated August 1, 2002, defendant Jay Bybee made at least two sharp departures from legality. First, he took what I call the Pinochet defense. Bybee basically said (I am paraphrasing), “In the name of national security, the president is exempt from laws prohibiting torture. The fact that we’re signatories to and have ratified the Convention Against Torture, that we have a criminal law against torturing people in or outside the United States, that the Eighth Amendment to the Constitution essentially prohibits torture— none of that matters. And if the president can authorize torture, he can authorize those under him to torture, and that will be a defense to a prosecution.”
Bybee also redefined torture very narrowly so that almost any coercive technique would not constitute torture. So taking a growling dog up to a naked man and saying “It’s going to bite your genitals off” is not torture under the Bybee/ Yoo memo. Hanging someone from his wrists is not torture. Bybee and Yoo said roughly that “only physical pain that leads to organ failure or death is torture.” It was only at his confirmation hearing for attorney general in January 2005 that Gonzales said the Bush administration now rejected that narrow definition and had gone back to one that the world accepts: torture is intentionally inflicting significant pain, or putting someone in fear of serious physical injury. Even today, Gonzales and the administration hold to their view that noncitizens held outside the United States can be treated inhumanly and that neither the Geneva Conventions nor the Convention Against Torture protects them. Their argument is devoid of any legal merit.
In addition to the Gonzalez and the Bybee memos, we have the authorization for mistreatment and torture written by Rumsfeld. Did Rumsfeld foresee American soldiers piling naked prisoners in a heap in Abu Ghraib? I can’t say for sure. But did his policy—the memos he authorized that said we don’t have to pay attention to the Geneva Conventions, that we can use dogs against people, that we can use extreme interrogation techniques—lead to Abu Ghraib? Absolutely. Did Rumsfeld authorize conduct that constituted war crimes? Absolutely.
After the U.S.-led invasion of Iraq in the spring of 2003, torture techniques were exported from Guantánamo to Iraq and used in the military prison of Abu Ghraib and other detention centers. This export was accomplished via a series of memoranda and instructions in whose production and implementation, according to the government’s Schlesinger investigation, the entire military chain of command was involved, including Lt. Gen. Ricardo Sanchez in Iraq and Maj. Gen. Geoffrey Miller, who had been in Guantánamo and then traveled to Iraq, up to Rumsfeld and to the president of the United States.
Continuing impunity for those who pulled the strings that led to war is not acceptable. Condoning American torture emboldens other governments of the world to continue what is unfortunately their own all-too-common practice. It is precisely this situation that the U.S. chief prosecutor at the Nuremberg Trial, Robert Jackson, had in mind when he said in his opening speech on November 21, 1945:
Let me make clear that while this law is first applied against German aggressors, the law, if it is to serve a useful purpose, must condemn aggression by any other nations, including those which sit here now in judgment. We are able to do away with domestic tyranny and violence and aggression by those in power against the rights of their own people only when we make all men answerable to the law.
American torturers should not go unpunished. ai
The Legal Battle to Locate Ghost Detainees
In September 2006, President George W. Bush publicly acknowledged the existence of a secret program for apprehending and transferring individuals into CIA custody for detention and coercive interrogation in overseas prisons. Detainees trapped in this “ghost detention” program—many of whom have been apprehended in one country and then transferred to another in a practice known as extraordinary rendition—are subjected to brutal tactics specifically designed to psychologically— and, in some cases, physically—break them. They are tortured, stripped of their legal rights and completely isolated from the world.
Ghost detainees are not allowed to see lawyers or the Red Cross; in some cases, their own family members—including children—have been apprehended, detained and/or subjected to coercive treatment. At least sixteen ghost detainees are known to remain imprisoned at Guantánamo Bay and an untold number are still “disappeared”; those who have been released have never been informed of why they were apprehended or where they were held.
Although the Bush administration has shrouded the program in a veil of secrecy, it has disclosed aspects of its operation, including its use of “waterboarding” as an interrogation technique. Increasingly, the media, intergovernmental organizations, human rights groups, former detainees and even foreign governments are investigating and exposing more aspects of the CIA’s activities, including its extensive cooperation with other federal agencies, foreign governments and private partners.
As part of these efforts, Amnesty International USA, the Center for Constitutional Rights (CCR) and the International Human Rights Clinic of New York University School of Law (IHRC) filed Freedom of Information Act requests in 2004 and 2006 with several U.S. government agencies, including the Department of Justice, the CIA and the Department of Homeland Security, to obtain information about the rendition, secret detention and coercive interrogation program. On June 7, 2007, AIUSA, CCR and IHRC filed suit in federal court to force the agencies to respond adequately to their requests for information. Since then, the CIA has admitted it possesses more than 10,000 relevant documents but released only a very small amount, a number of which were already in the public domain.
Accountability and transparency are just two of the many casualties of the U.S. “war on terror.” “Over the past few years, it has become alarmingly clear just how systematic, widespread and wellorchestrated the CIA’s program of torture, enforced disappearance and extraordinary rendition really is,” said Professor Margaret Satterthwaite, Director of the IHRC. “These agencies must be forced to disclose vital information to the American people, who have a right to know about what the U.S. government is doing in their name. It is time for the CIA—and the other agencies working with it—to be held accountable, and for this program to be shut down.”
AIUSA, CCR and IHRC are continuing the effort to uncover the full truth about the secret detention program. Outside the courtroom, it will be up to individuals like you to demand accountability and transparency— to ensure that justice for ghost detainees is not “disappeared” in the name of your national security.
Veerle Opgenhaffen and Amna Akbar NYU International Human Rights Clinic