Torture and the Law

Matthew Clark

The War in Court:
Inside the Long Fight Against Torture
By Lisa Hajjar
University of California Press, 2022, 376 pages. $29.95 hardcover.

THE RIGHT TO protection against torture and to challenge imprisonment by the government are fundamental human rights. Professor Lisa Hajjar tells how the U.S. government assaulted those rights in its “war on terror” by detaining and torturing “terror suspects” without any due process or safeguards.

Many did not survive the ordeal. Some are still in detention without trial. A sociologist with a career of expertise on state torture, who has gone to Guantanamo Bay to meet with detainees and their lawyers, Hajjar is well qualified to tell this story of horrific government abuse and those who oppose it.

On September 18, 2001, the U.S. Congress enacted the “Authorization for Use of Military Force” which gave extremely broad authority to pursue al-Qaeda, the Taliban, and  broadly construed “associated forces.” In November 2001, the Bush administration issued a military order claiming the right to indefinitely detain any non-citizen accused of terrorism, and providing for military trials of detainees without due process.

In February 2002, the administration issued an executive order declaring that it could designate detainees as “enemy combatants,” a slippery category intended to fall outside the legal protections required for prisoners of war or civilians. The U.S. military and CIA began capturing and torturing “enemy combatants” from all over the world, even places far from any battlefield, like Thailand, West Africa and Macedonia.

Those who oppose U.S. global machinations often presume that the masters of war know what they are doing. In their post-9/11 bloodlust, Dick Cheney and others in the Bush administration appear to have created the torture program under the lazy, ill-informed idea that they must do “whatever it takes” to wage the “war on terror.”

If the government’s goal was to use torture to obtain reliable intelligence, military experts debunk these methods as completely ineffective. The Bush-appointed top Navy lawyer Alberto Mora, for example, opposed the policy as both monstrous and a danger to national security.

The top administration lawyers for the Army, Marines and Air Force opposed the torture policy and their associated sham methods of adjudication. General Antonio Taguba, author of a U.S. Army report into torture policies in Abu Ghraib (Iraq), accused the Bush administration of war crimes.

The “ticking time bomb” scenario portrayed in American popular culture, by which the United States must torture terrorists to obtain vital intelligence and stop imminent terrorism, is a fiction. To the contrary, torture produces extremely unreliable intelligence, because victims will say whatever the torturer wants to hear to stop the abuse.

Such was the case with Ibn Sheikh al-Libi, a Libyan captured by the CIA in Pakistan who, under torture, produced bogus “intelligence” of a supposed al-Qaeda/ Saddam Hussein connection, that the US used as justification to invade Iraq. (70-72) The CIA knew this intelligence was flimsy, and al-Libi later recanted the claims.

Manufacturing Consent for Torture

Whether the U.S. government, media and ruling class ever believed in the effectiveness of its torture program, they successfully utilized torture as red meat to feed the worst impulses in the populace. Hajjar notes recent Pew research polling data showing large swaths of the population support torture of suspected terrorists, even if it produces no positive security outcome.

Hajjar recounts how this pro-torture constituency was not organic, but fostered by those in power. It is not hyperbole to note the collusion between the government and Hollywood in in this regard.

Hajjar notes how the CIA — which refused to give Guantanamo detainee Ammar al-Baluchi’s lawyers “top secret” information about his torture that was necessary for them to challenge his detention — freely shared those details with the filmmakers of the pro-torture blockbuster “Zero Dark Thirty,” so they could open their movie with a scene portraying his torture.

It is no mystery why the government wants to withhold the unbelievably cruel details of al-Baluchi’s torture. They admittedly obtained no useful intelligence from his torture. Rather, CIA interrogators tortured al-Baluchi as a “training prop,” where trainees would spend hours at a time slamming the naked man headfirst into a wall as practice for interrogations of other detainees.

Years of torture have given al-Baluchi severe and permanent brain damage. (295-299) He remains at Guantanamo Bay without trial for the crimes alleged against him.

Cutting through the propaganda, Hajjar exposes the monstrosity of the torture and detention programs. Murat Kurnaz, a Turkish citizen and German legal resident, was an innocent civilian traveling in Pakistan, detained, and sold for a bounty to U.S. forces looking for “terrorists” in 2001. (99-103)

The United States tortured him, although interrogators quickly learned he had no intelligence or terrorist connections. Rather than release him, the military held him in Guantanamo Bay, where he suffered years of more needless detention and torture. Kurnaz had no idea of the accusations against him until 2004, when he learned that the United States believed one of his Turkish friends in Germany had been a suicide bomber.

Stunned at these accusations, Kurnaz explained that his friend was not a suicide bomber, but was still living in Germany.

Kurnaz’s lawyer even submitted a notarized affidavit from his friend stating as such. The mere fact that this friend was alive to sign an affidavit shows he had not committed a suicide bombing, but this evidence was ignored and Kurnaz was not released until 2007, completely innocent.

Black Hole of Cruelty

Hajjar’s account is filled with similar horror stories of those trapped in this black hole of authoritarianism and cruelty. The U.S. captors of Jamil el-Banna, released in 2007 after years of detention, redacted the letters from his family, removing his child’s message that “I love you, daddy.” (98-99)

The CIA’s own analysis in 2002 concluded that the majority of Guantanamo detainees had no ties to or useful intelligence on the Taliban or al-Qaeda. A 2006 Seton Hall study found that the majority of detainees committed no hostile acts against the United States. But the system continued, and still remains.

The detainees’ testimony obtained under brutal torture is rightly tainted as inadmissible, unreliable evidence. The United States therefore sabotaged its own ability to legitimately prosecute cases against suspects, even those who might have had actual al-Qaeda connections.

Over two dozen suspects remain detained in Guantanamo Bay. Many have legal proceedings mired in pretrial limbo. Many still, after all these years, have never been formally charged with a crime.

Hajjar explains how self-proclaimed democracies like the USA, unlike more transparently authoritarian governments, must make particular use of the law to legitimize, rationalize and obscure the barbarity of its torture, so that society might turn off its conscience under the imprimatur of legality.

Because the law is such a vital forum for this struggle, the heroes of Hajjar’s story are primarily lawyers fighting to hold the government accountable.

Hajjar describes the impressively varied cross-section of lawyers who worked together in resistance. Leftwing lawyer Michael Ratner’s Center for Constitutional Rights (CCR) took an early leading role, not the easiest position in the post-9/11 backlash against those accused of “defending terrorists.”

CCR found stalwart unlikely allies among US military lawyers, as previously noted. One Judge Advocate General (JAG) lawyer, Lt. Commander Matthew Diaz, even leaked a list of Guantanamo detainees to CCR, for which he was sentenced to six months in prison.

The military JAG Corps is not known for its strident resistance to militarism. Lt. Col. Jon Jackson, a very conservative lawyer who re-enlisted in the military after 9/11 to “fight terrorism,” ended up fighting the United States’ own actions as defense counsel for terrorist suspect Omar Khadr, the first person since World War II prosecuted in a U.S. military commission for crimes alleged to be committed while he was a minor.

Between the extremes of CCR and the JAG Corps, a wide section of lawyers joined the fight. At its peak, the “Guantanamo Bar” had roughly 500 attorneys.

“Some saw their roles as defenders of the rule of law and due process norms that are the pillars of American legal traditions, while others saw their roles in more global terms as defenders of human rights. What these lawyers had in common was a willingness to act in the name of the laws that were upended by the torture policy.” (xviii)

Some Victories and Reversals

This coalition of lawyers won significant victories and freed many people. In 2004, CCR won Rasul v Bush, where the U.S. Supreme Court held that Guantanamo prisoners have the right to file habeas petitions demanding that the government justify their imprisonment.

In response to Rasul, the United States created “Combatant Status Review Tribunals” (CSRTs), a kangaroo-court process by which detainees could attempt to challenge their designation as “enemy combatants.”

The government could use anonymous witnesses and bypass the standard judicial rules of evidence. Detainees were not entitled to counsel, and anything a detainee told his non-attorney representative was not subject to attorney-client privilege.

Once the CSRT process affirmed detainees’ “enemy combatant” designation, they could challenge the detention through a military commission, a similarly slanted kangaroo-court process, although they could at least be represented by counsel.

In 2006, the Supreme Court in Hamdan v Rumsfeld ruled military commissions unlawful under the Geneva Conventions and the U.S. Code of Military Justice. In response, the government enacted the Military Commissions Act, reimposing the military commissions and CSRTs in very similar form, and granting criminal immunity to officials involved in torture and detention.

In 2008, the Supreme Court in Boumediene v Bush ruled CSRTs unconstitutional, and expanded the Rasul ruling that Guantanamo detainees could file habeas petitions challenging their detention, because the US exercised exclusive control over the prison.

In 2009, President Obama, who had campaigned on closing Guantanamo Bay, signed a new Military Commissions Act that maintained the military commissions process with only slight modifications.

In the wake of Boumediene, detainees began successfully challenging their unlawful detentions. The Obama administration, continuing Bush’s obstructionism, appealed each of these district court determinations to the more reactionary circuit court, which overturned them.

Despite the vital work of lawyers challenging abuses, and several important legal victories, the U.S. legal system proved a largely inadequate safeguard against torture and unjust imprisonment. The Bush administration architects of these monstrous actions have escaped accountability.

U.S. courts have dismissed civil lawsuits by detainees. Maher Arar, a Canadian and Syrian citizen, was abducted by force at JFK International Airport on a layover flight back home to Canada in 2002. The United States falsely believed he had connections to terrorism, and sent him to Syria, were he was brutally tortured for nearly a year before the Syrian government acknowledged he had no terrorist connections.

After he was finally released, Arar and CCR sued the United States. The court dismissed the case, accepting the government’s claim that allowing the case to continue would force it to reveal “state secrets.” The dismissal was upheld on appeal, and the Supreme Court declined to hear the case. (The Canadian government ultimately paid compensation to Arar for its complicity in his abduction and torture.)

The United States refused even to apologize or acknowledge Arar’s torture. The judiciary similarly deferred to the “state secrets privilege” in the case of Khalid el-Masri, an innocent German and Lebanese citizen who happened to have the same name as a suspected terrorist.

El-Masri was abducted in Macedonia and turned over to the CIA, which tortured him at a black site for months before realizing they had the wrong suspect and finally releasing him.

The War in Court brings the dark story of U.S. torture in the “war on terror” to light, the utter bankruptcy of the endeavor from its origin, and the heroism of those who resisted. Hajjar hopes that, “someday, the collaborative efforts that have constituted the long fight against torture will help produce a real, national reckoning. […] That kind of reckoning might, finally, eradicate the specter.”(317)

January-February 2024, ATC 228

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