Time to Reckon with Torture

(Originally posted at the Daily Report.)

This past February, I was at a hearing in the Georgia House Defense & Veterans Affairs Committee to testify against a measure that would have had the effect of keeping the prison at Guantánamo Bay open by urging Congress to prohibit the transfer of Guantánamo detainees to the United States. I read a statement to the committee issued by prominent experts on national security and counterterrorism detailing how keeping Gitmo open endangers U.S. national security. In response, one of the committee members, Rep. Burke Day, stated that not only would he not vote against the measure, but that he would further amend it to clarify that the men held at Guantánamo be subjected to "waterboarding, skate boarding, surf boarding, whatever." The fact that a state legislator would make light of torture was shocking enough. I was further taken aback that no legislator present for the hearing that day expressed outrage over the remarks.

This blasé official attitude towards torture, though extreme, is not unusual. Despite disavowing torture, the Obama administration continues to shield from civil liability, criminal investigation, and public scrutiny Bush administration officials who authorized torture.

This is all the more unacceptable as a growing public record of official documents and testimonies makes undeniably clear that detainees were tortured, abused, and, in over 100 cases, even killed in U.S. custody since 9/11. The documents further reveal that officials at the very highest levels of our government authorized and encouraged the mistreatment.

Through several Freedom of Information Act (FOIA) lawsuits, the American Civil Liberties Union (ACLU) has uncovered over 150,000 pages of formerly secret government documents related to the abuse and torture of prisoners in U.S. custody overseas.

The documents, which have informed much of what we know about the Bush administration's torture program, are also the basis of The Torture Report, an unfolding, online narrative that aims to give a full account of the Bush administration's torture program by bringing together government documents, investigations, and witness statements.

According to Larry Siems, the principal author of The Torture Report: "These documents leave no doubt that under the Bush administration the United States violated domestic and international bans on torture and cruel, inhuman and degrading treatment, committing abuses we shielded from the eyes of the world. Few of these abuses have been properly investigated and still fewer prosecuted, and there is too little public conversation about our legal and ethical obligations to seek the healing and recovery of those we have abused."

One of the investigation records unearthed through the ACLU's FOIA lawsuit focuses on allegations of abuse committed by soldiers stationed in Fort Benning, Georgia. The Criminal Investigation Division of the Department of Defense initiated an investigation after Playboy magazine published an article in May 2004, titled "Death and Dishonor." Soldiers quoted in the article alleged that soldiers assigned to the 1/15th Infantry Battalion had, among other things, shot an unarmed Iraqi while he was fleeing, hog-tied him and physically assaulted him, and "dug inside wounds of EPWs [enemy prisoners of war] while they were incapacitated." The investigation determined that "there are indications that the allegation of abuse of an EPW while in custody could have occurred; however, there were no direct witnesses and the suspect is deceased." The investigation was closed on or about July 26, 2004.

Earlier this week, on the occasion of Torture Awareness Month, the ACLU of Georgia sponsored an event called "Reckoning with Torture: Memos and Testimonies from the 'War on Terror'", where local artists took the stage with politicians, activists, and professors to read from testimonials and memos that have brought the abuses to light.

One of the documents read was an excerpt from a legal memo signed by Jay Bybee, Assistant Attorney General for the Justice Department's Office of Legal Counsel, and issued to the CIA, in which the use of waterboarding was authorized:

In this procedure, the individual is bound securely to an inclined bench, which is approximately four feet by seven feet. The individual's feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner. As this is done, the cloth is lowered until it covers the nose and mouth. Once the cloth is saturated and completely covers the mouth and nose, air flow is slightly restricted for 20 to 40 seconds due to the presence of the cloth. This causes an increase in carbon dioxide level in the individual's blood. This increase in the carbon dioxide level stimulates increased effort to breathe. This effort plus the cloth produces the perception of 'suffocation and incipient panic,' i.e., the perception of drowning. During those 20 to 40 seconds, water is continuously applied from a height of twelve to twenty-four inches. . . . You have orally informed us that this procedure triggers an automatic physiological sensation of drowning that the individual cannot control even though he may be aware that he is in fact not drowning.

In his confirmation hearing before the Senate Judiciary Committee in January 2009, Attorney General Holder declared that waterboarding amounts to torture.

Yet an ongoing investigation of the torture program initiated by the Justice Department in August 2009 excludes top-level officials. The administration also continues to withhold from the public key documents relating to the CIA's rendition, detention, and interrogation program; has urged courts not to allow torture victims to bring claims under the Constitution; and has invoked the "state secrets" privilege to prevent torture victims from having their day in court.

The administration must change course now by broadening the scope of the criminal investigation to include senior officials who authorized or encouraged the abuse, and by allowing the victims of torture to have their day in court. Doing otherwise will institutionalize impunity and do irreparable damage to the rule of law. And it will also no doubt lead to normalization and continued official endorsement of torture of the kind witnessed in the Georgia legislature.

At the event held earlier this week, Professor Abdullahi Ahmed An-Na'im spoke about this visit to Guantánamo a few years back:

The thought of being kept in detention for six years, eight years in these conditions is unbearable...as human beings, we often hear about atrocities being committed and wonder why? These atrocities happen because we and people like us allow them to happen. When will they stop? When we and people like us stop them.

It is past time for us as a country to reckon with torture. One hundred fifty thousand pages of torture documents demand accountability.