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Chapter 1 - Origins
Also, it would be useful to link to a detailed explanation of the National Security Act's requirements about MONs and Findings. Given that CIA did not inform Congress they were waterboarding until after they had already done a month of it with Abu Zubaydah (and it seems clear they didn't tell Congress they HAD already waterboarded when they first briefed on this), it seems important to explain the legal mandate for Congressional notification.
Tens of thousands of pages of government documents and public reports, books, and articles now testify to the torture and cruel, inhuman, and degrading treatment of detainees that began in the CIA's “black sites” and spread through acknowledged and unacknowledged prisons in Guantánamo Bay, Afghanistan, and Iraq. Much of the most direct evidence remains secret, however. Videotapes of interrogations have been destroyed. Material still being withheld or redacted includes photographs, descriptions of the destroyed videotapes, real time cable traffic between interrogators and senior officials in Washington, and direct testimonies by victims of torture and abuse.
Since January, more of these 2,000 documents have been released, most notably the report summarizing the results of an investigation by the CIA's own Office of the Inspector General into the abuse of CIA detainees under the Rendition, Detention, and Interrogation program. That May 2004 OIG report depicts an agency struggling to implement a presidential order that put it on the wrong side of the law from the start:
The day before President Bush signed the September 17, 2001 directive, then-Vice President Cheney told a national audience on Meet the Press that the United States, in responding to the September 11 terrorist attacks, would have to work “the dark side,” insisting “it's going to be vital for us to use any means at our disposal, basically, to achieve our objectives.” The day after issuing the secret order, the President signed the Authorization for Use of Military Force in Response to the 9/11 Attacks, a Congressional joint resolution that had passed on a 98-0 vote in the Senate and a 420-1 vote in the House of Representatives. The resolution authorized the President
At the time, few outside the administration knew that it was plotting an antiterrorism strategy that recognized almost no legal restrictions, and no one outside a handful of “special access” senior administration officials knew that its plans specifically included enforced disappearance and abusive interrogations.
Although mindful of the terrible threat to civilised society of international terrorism, the Committee against Torture reminds State parties of the non-derogable nature of most of the obligations undertaken by them in ratifying the Convention against Torture.
As horrific as 9/11 is in everyone's memory, it is a fundamental aspect of leadership to be able to separate one's emotions from one's professional duty. As General George C. Marshal said, "Once an Army is involved in war, there is a beast in every fighting man which begins tugging at its chains ... a good officer must learn early on how to keep the beast under control both in his men and in himself."
Our leaders failed to keep that 'beast' under control and, in failing to do so, became the very enemy we were fighting against. I believe these policies rise to a level above incompetence because they violated U.S. and international law. In that context, they can only be classified as crimes.
- 1. The United States signed but has not ratified the International Convention for the Protection of All Persons from Enforced Disappearance, and the Bush administration tried between 2003 and 2006 to renegotiate the scope of its prohibitions to shield CIA agents from prosecution under the treaty. R. Jeffrey Smith, "U.S. Tried to Soften Treaty on Detainees," Washington Post,Sept. 9, 2009 (citing State Department documents secured by Amnesty International under the Freedom of Information Act). Regardless, enforced disappearance is barred under a variety of international human rights and humanitarian laws defining minimum due process rights.
- 2. For example, in 1994, the United Nations Commission on Human Rights, reviewing the case of a Libyan man who had been effectively “disappeared” by Libyan secret police and held in secret for three years, found that his prolonged incommunicado detention in an unknown location constituted torture and cruel and inhuman treatment ( El-Megreisi v. Libyan Arab Jamahiriya , Communication No. 440/1990, U.N. Doc. CCPR/C/50/D/440/1990 (1994). Likewise, the InterAmerican Court on Human Rights has ruled that “prolonged isolation and deprivation of communication are in themselves cruel and inhuman treatment, harmful to the psychological and moral integrity of the person and a violation of the right of any detainee to respect for his inherent dignity as a human being.” ( Velásquez Rodríguez Fairen Garbi and Solis Corrales and Godinez Cruz Cases (Provisional Measures ), Inter-American Court of Human Rights (IACrtHR), Jan. 19, 1988
- 3. Fourth Decl. of Marilyn A. Dorn ¶ XX, Am. Civil Liberties Union v. Dep't of Def. , No. 1:04-CV-4151 (AKH) (S.D.N.Y. Mar. 30, 2005) (cited in Am. Civil Liberties Union v. Dep't of Def. ,389 F. Supp. 2d 547, 557, 563, 565 (S.D.N.Y. 2005)).
- 4. President George W. Bush speech, Sept. 6, 2006, available at http://www.nytimes.com/2006/09/06/washington/06bush_transcript.html?page....
- 5. Eighth Decl. of Marilyn A. Dorn ¶ XX, Am. Civil Liberties Union v. Dep't of Def. , No. 1:04-CV-4151 (AKH) (S.D.N.Y. May 12, 2003); May 12, 2008 Transcript
- 6. OIG Report, “Counterterrorism Detention and Interrogation Activities, September 2001 – October 2003 (CIA Office of the Inspector General Special Review, May 7, 2004), 3. The report notes that the CIA had “intermittent involvement” with interrogations up through the Vietnam War, and had developed a Human Resource Exploitation (“HRE”) program to train interrogators in Latin American countries in the 1980s. That program was terminated in 1986 “because of allegations of human rights abuses in Latin America,” and the agency had since avoided any role in interrogations. The CIA had no organizational background or experience in running detention facilities.
- 7. OIG Report, 2.
- 8. The CIA is now withholding many of these communications, which include cables between the black sites and CIA headquarters and consultations between the CIA and the Justice Department's Office of Legal Counsel, partly on the grounds that the exchanges concern “the prospect of criminal, civil, or administrative litigation against the CIA and CIA personnel who participated in the program” and are thus privileged. Decl. of Wendy M. Hilton ¶ XX, Am. Civil Liberties Union v. Dep't of Def. , No. 1:04-CV-4151 (AKH) (S.D.N.Y. Aug. 31, 2009). “As subsequent events have shown” Ms. Hilton notes, “this anticipation was not unwarranted.”
- 9. OIG Report, 94
- 10. Dick Cheney, appearing on "Fox News Sunday, August 30, 2009; available at http://tpmtv.talkingpointsmemo.com/?id=3322551
- 11. OIG Report, 100-01
- 12. OIG Report, 96
- 13. OIG Report, 105
- 14. Michael V. Hayden, Speech to the New York Council on Foreign Relations, Sept. 7, 2007, available at http://www.cfr.org/publication/14162/conversation_with_michael_hayden_ru...
- 15. Matthew Cole and Brian Ross, “Deaths, Missing Detainees Still Blacked Out in New CIA Report,” 25 August 2009, http://media.abcnews.com/m/screen?id=8410340&pid=3029941
- 16. Authorization for Use of Military Force in Response to the 9/11 Attacks (P.L. 107-40, 115 Stat. 224 (2001))
- 17. This original language could have been construed to authorize military action against Iraq, for example.
- 18. Congressional Research Service Report for Congress, “Authorization for Use of Military Force in Response to the 9/11 Attacks (P.L. 107-40): “Legislative History”; Tom Daschle, Power We Didn't Grant , Wash. Post , Dec. 23, 2005
- 19. John Yoo, “The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them,” September 25, 2001, and “Authority for Use of Military Force To Combat Terrorist Activities Within the United States, October 23, 2001
- 20. email from Edward R. Cummings, Department of State, 27 September 2001
- 21. Article 2 states: 1. Each State Party shall take effective legislative, administrative, judicial, or other measures to prevent acts of torture in any territory under its jurisdiction. 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. 3. An order from a superior officer or a public authority may not be invoked as a justification of torture.
- 22. Article 15 states: Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.
- 23. Letter from the High Commissioner for Human Rights, 11 October 2001