New Book ‘The Dark Side’ Reveals Previously Unknown Details of Torture Policy
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Related subjects: European Union, Executive Powers, J.E. Robertson, Rendition & Ghost Flights, Security & Surveillance, U.S. Law Comments Off
The new book, The Dark Side, by Jane Mayer, goes to the roots of the Bush administration’s bold modifications to long-standing security policy, including an apparent devotion to the use of extreme interrogation methods, classed by both law and judicial precedent as torture, to extract information from detainees, despite such actions negating the possibility of any established form of prosecution based on such evidence.
The New York Times reports that the book explores “the emergence of the widespread use of torture as a central tool in the battle against terrorism; and the fierce, stubborn defense of torture against powerful opposition from within the administration and beyond”, adding that:
a small group of determined men and women thwarted international and American law; fought off powerful challenges from colleagues within the Justice Department, the State Department, the National Security Council and the C.I.A.; ignored or circumvented Supreme Court rulings and Congressional resolutions; and blithely dismissed a growing clamor of outrage and contempt from much of the world — all in the service of preserving their ability to use extreme forms of torture in the search for usable intelligence.
The extreme tactics used against alleged terrorist conspirators held at various US-run prisons and prison camps, caused consternation across the world, including from within the administration, and led to a prominent denunciation of such tactics by the president himself. Nevertheless, Pres. Bush sent his solicitor general to the Supreme Court to argue in favor of the tactics he had publicly denounced as inexcusable. Alan Brinkley’s Times review of The Dark Side alleges that:
The tactics the president denounced were precisely those he had authorized and encouraged in the growing network of secret prisons around the world. The detainees in these scattered sites — many of them innocent — have been held for months and years without charges, without lawyers, without notification to their families and often without respite from torture for weeks and months at a time. The Bush administration’s response to the Abu Ghraib scandal was not to stop the behavior, but to try to hide it more effectively.
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It has been suggested that part of John Ashcroft’s motivation for leaving the position of Attorney General was his unwillingness to continue supporting what he perceived to be a flouting of the fundamental principles of American jurisprudence. His successor, Alberto Gonzales, has been forced to step down, in part because of his alleged involvement in politically motivated firings of top federal prosecutors, and due to mounting outrage over his role in drafting the administration’s detention and torture policies, with positions that have been found by the Supreme Court to violate the US Constitution.
Most of those detained in connection with the “war on terror” have been released, sometimes after years in detention, without charge, after they were found to be either not involved in terror, not valuable as intelligence assets, or simply, innocent. Legal experts now say the administration faces as a possible catastrophic consequence of its detention and interrogation methods that it may be unable to mount a viable prosecution against those it has accused of the worst crimes.
The Supreme Court has ruled that detainees held by the US at Guantánamo Bay have a right to challenge the grounds of their detention in civilian federal courts. Those courts have begun to issue rulings, in which much of the logic of the detentions has been overturned —in the case of a Uighur muslim from Western China, the court found there was no concrete evidence to even justify detention, only the mention of hearsay in intelligence documents, and no evidence outside those documents.
Another serious revelation in recent months came from a Senate hearing in which it was revealed that much of the “enhanced interrogation” techniques employed by interrogators empowered by the new tack on torture policy may have “migrated” from the Pentagon’s SERE (Survival, Evasion, Resistance and Escape) program. SERE is intended to educate US military personnel in how to resist the brutal techniques that may be used on them if held by enemy regimes.
Testimony given before the US Senate Judiciary Committee suggested the CIA had “reverse engineered” brutal interrogation practices, using the SERE program’s information about illegal techniques used by certain enemy regimes as the model. This played into the perception of the administration’s critics that we are becoming what we fight against.
On 7 February 2002, Pres. George W. Bush signed an executive order listing various facets of a new approach to the Geneva Conventions, which bind all signatories’ actions in war, in all places at all times. The document began as follows:
Pursuant to my authority as commander in chief and chief executive of the United States, and relying on the opinion of the Department of Justice dated January 22, 2002, and on the legal opinion rendered by the attorney general in his letter of February 1, 2002, I hereby determine as follows:
a. I accept the legal conclusion of the Department of Justice and determine that none of the provisions of Geneva apply to our conflict with al-Qaida in Afghanistan or elsewhere throughout the world because, among other reasons, al-Qaida is not a High Contracting Party to Geneva.
The Supreme Court later ruled, as numerous US diplomats and security officials had warned was the case, that the US was bound by the Geneva Conventions, because it was a High Contracting Party to the treaty. The Geneva Conventions were designed to prevent the outrages of World War II from happening anywhere at any future time, and provide absolutely zero circumstances under which their provisions against inhumane treatment can be ignored. Under the US Constitution, such treaties are “the supreme law of the land”.
Mayer presents evidence suggesting that top administration officials had abandoned the argument that torture was an effective means of extracting useful information, by 2006, but that the respective secret programs were defended aggressively because, in the words of the Times review: “they feared being prosecuted should the program be halted and exposed. Even releasing detainees whom they knew to be entirely innocent was dangerous, since once released they could talk.”
According to the book, Vice Pres. Dick Cheney allegedly argued in a White House meeting on the issue that “People will ask where they’ve been and ‘What have you been doing with them?’” Cheney is also alleged to have worried that “They’ll all get lawyers.” It is thought this mentality may have led to a campaign of secrecy and deception surrounding the interrogation programs, a form of evidence of official knowledge that the programs violated existing law.
London’s Evening Standard has reported that the UK’s foreign secretary David Miliband was “duped on a colossal scale” by the CIA regarding its program of “extraordinary rendition”, including unregistered flights and prisoner transfer not grounded in the legal requirements of extradition treaties. Miliband claims not to have known of any incidents of detention or torture on UK territory, and allegations across Europe continue to circulate that an effort was made to deceive allied governments regarding potentially illegal detention procedures.
The current official policy on the various approaches to detention and interrogation hinge on the coming round of prosecutions. Lawyers for many of the detainees held at Guantánamo Bay, now just a fraction of those originally detained, intend to argue in federal court that their detention itself was unfounded or illegal, or that methods employed undermine either partially or entirely the government’s case against the detainees.
The administration seeks to persuade federal courts that its system was legal and fair, and that prosecutions can proceed on the grounds of the evidence obtained. Military judges have ruled that detainees can see classified evidence to be used against them, prompting the administration to seek time to decide whether or not to proceed with prosecution against certain detainees. There is widespread disagreement over whether or not extreme interrogation methods have led to useful intelligence gathering, or whether the Guantánamo and ‘black site’ programs have failed in this respect.
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