WRITTEN BY: JAMES ROTH
James Roth is a retired lawyer, now a writer. He was one of the founders and long-time board member of Advocates For Human Rights and The Center For Victims of Torture. He is currently completing his first novel entitled “Beyond Torture.” He is also active with many groups working on foreign policy and international human rights issues.
Before 9/11 it was widely accepted that torture was illegal under international and United States domestic law. The United States had signed and ratified the Convention Against Torture and had enacted the anti-torture statute of 1994, 18 U.S.C. Sections 2340-2340A , which criminalized acts of torture by United State nationals or non-nationals committed outside the United States, as well as the Torture Victim Protection Act of 1991.
Shortly after 9/11 Bush administration officials sought and received authorization through various legal memos and reports by the Department of Justice and Department of Defense to create detention facilities outside the United States and to use harsher interrogation techniques than those previously approved. The result was the use of “Enhanced Interrogation Techniques” as well as increased renditions of detainees to other countries for interrogation.
Many abuses which have now been well-documented followed including long-term detentions without access to legal counsel or legal oversight, widespread use of interrogation techniques broadly acknowledged as being torture and cruel and unusual punishment, including deaths of over 100 detainees under questionable circumstances.
Upon taking office in January 2009, President Obama issued Executive Order 13491—Ensuring Lawful Interrogations. Yet, despite well-documented violations of international and domestic laws no clear standards have emerged and there has been no accountability except for a handful of lower level military personnel.
This article outlines a number of areas, both legislative and domestic, that it urges our Congressional Representatives and Senators to pursue.
Specifically, this article urges action to confront the United States Congress to:
- Release to the public the December 2012 Senate Intelligence Committee Report with as few redactions as possible so that the public can understand what brought about the shift in U.S. policy toward torture and cruel treatment and diminished America’s longstanding consensus against torture and cruel treatment.
- Request that President Obama release in some form the report(s) by the Special Interagency Task Force on Interrogation and Transfer Policies established under Executive Order 13491.
- Issue an apology to Canadian citizen Mahar Arar, who was mistakenly retained and rendered to Syria where he was tortured, and to Khalid El-Masri, a Lebanese-Canadian who was kidnapped by the CIA in Macedonia where he was tortured and then flown to Afghanistan and tortured some more until the CIA discovered that it had the wrong person and dumped him on an isolated street in Albania.
- Ask the Office of the Inspector General for the CIA to supplement the 2004 Report in light of recently obtained information contained in a Human Rights Watch Report of alleged waterboarding and other abuses of detainees in Libya.
- Ask Attorney General Holder to investigate the alleged abuses in Libya.
- Take appropriate action to encourage local communities to accept detainees from Guantanamo who have been exonerated.
- Assure that appropriate oversight is established and maintained so that torture and cruel treatment does not occur in the future.
On September 14, 2001 President Bush issued the “Declaration of National Emergency by reason of Certain Terrorist Attacks.” On September 17, 2001 President Bush issued a 12-page directive (known as a “memorandum of notifications) to the Director of the CIA and members of the National Security Council authorizing the CIA to capture suspected terrorists and members of Al-Qaeda and to create detention facilities outside the United States to hold and interrogate them. The International Committee of the Red Cross was refused access to detainees held in the new CIA program until September 2006. On November 13, 2001 President Bush authorized the detention of alleged terrorists and subsequent trial by military commission, which he ordered would not be subject to the principles of law and rules of evidence applicable to U.S. federal courts.
On July 11, 2002, the first detainees arrived in Guantanamo Bay, Cuba. On January 18, 2002 President Bush declared that the Third Geneva Conventions did not apply to the conflict with Al Qaeda or the Taliban and that they would not receive the protections afforded to prisoners of war. On February 7, 2002 President Bush issued a memorandum to that effect. In so doing, the President rejected the requests by Secretary of State Colin Powell to reconsider and reverse his decisions, as well as the advice of William H. Taft, IV, Legal Adviser to the State Department, that these decisions were inconsistent with the plain language of the Geneva Conventions and contravened the unvaried interpretation and practice in the fifty years since the United States became a party of the Conventions.
In March 2002, the first “high value detainee”, Abu Zubaydah, was detained and interrogated by the CIA. The CIA interrogation program sanctioned by President Bush included interrogation techniques adapted from the Survival Evasion Resistance Escape (“SERE”) training program in which U.S. military members were exposed to and taught to resist interrogation techniques used by countries that did not adhere to the Geneva Conventions. As reported in the later CIA Inspector General Report, the U.S. now employed these techniques itself, including waterboarding, confining detainees in a dark box with insects, up to 11 days of sleep deprivation, facial holds and slaps, “walling” (pushing a detainee against a wall) and use of stress positions.
On November 27, 2002 William J. Haynes, General Counsel for the Department of Defense, provided to Donald Rumsfeld an “Action Memo regarding Counter-Resistance Techniques seeking approval of three categories of counter-resistance techniques to aid in the interrogation of detainees at Guantanamo Bay.” Rumsfeld initialed his approval on December 2, 2002 to the first two categories and one of the techniques from the third category (“mild non-injurious physical contact”). This signaled approval of the SERE enhanced interrogation techniques by the military in addition to the CIA. This is one example of the migration of lists and interrogation techniques beyond those approved by the Army Field Manual. U.S. Army General Geoffrey D. Miller was given command of Joint Task Force Guantánamo in November 2002. He implemented the new harsh techniques there. In August 2003 Miller was sent to Iraq by the Department of Defense to help get more information out of Iraqi prisoners. In September Miller submitted a report recommending “GTMO-ising” interrogation techniques–combining the detention and interrogation units at Abu Ghraib into the Theater Joint Interrogation and Detention Center. Miller recommended that prison guards be used to “soften up” prisoners for interrogations.
In September 2003 Lieut. General Ricardo S Sanchez sent a secret cable to US Central Command outlining more aggressive interrogation methods that he planned to authorize immediately, including several that were later revealed when the Abu Ghraib scandal broke.
All of the above facts illustrate how the US military’s ad hoc decision-making created confusion and allowed the harsh methods to infiltrate from Afghanistan to Guantánamo and Iraq. A clear line exists from the initial decision that the Geneva Conventions did not apply to Al Qaeda and Taliban detainees.
As described by the ICRC after they were finally provided with access to detainees, the CIA detention program “included transfers of detainees to multiple locations, maintenance in continuous solitary confinement, incommunicado detention throughout the entire period of their undisclosed detention, and the infliction of further ill-treatment through the use of various methods either individually or in combination, in addition to the deprivation of other basic material requirements.” The ICRC Report further found: “The ability of the detaining authority to transfer persons over apparently significant distances to secret locations in foreign countries actually increased the detainees’ feelings of futility and helplessness, making them more vulnerable to the methods of ill-treatment… these transfers increased the vulnerability… to their interrogation, and was performed in a manner (goggles, earmuffs, use of diapers, strapped to stretchers, sometimes rough handling) that was intrusive and humiliating…”
The United Nations Joint Study on secret detentions found that the CIA had taken detainees who were held in Afghanistan, Thailand, Poland, Romania and other locations. The UN Joint Study further found the CIA “had taken 94 detainees into custody and had employed enhanced interrogation techniques to varying degrees in the interrogation of 28 of those detainees.”
It has been documented that over 100 detainees died while in US custody, many under suspicious circumstances. 
The interrogation techniques used on detainees were euphemistically described as “enhanced interrogation techniques” by the US government, but the United Nations and the International Committee of the Red Cross found that they rose to the level of torture and cruel, inhuman and degrading treatment. 
Alberto J. Mora served as General Counsel to the U.S. Navy from 2001 to 2006. Upon learning of the authorization of the use of coercive interrogation techniques by the US he stated:
“To my mind, there’s no practical distinction [between cruelty and torture]. If cruelty is no longer declared unlawful but instead is applied as a matter of policy, it alters the fundamental relationship of man to government. It destroys the whole notion of individual rights. The Constitution recognizes that man has an inherent right, not bestowed by the state or laws, to personal dignity, including the right to be free of cruelty. It applies to all human beings, not just in America—even those designated as ‘unlawful enemy combatants.’ If you make an exception the whole Constitution crumbles.
Besides, my mother would have killed me if I hadn’t spoken up. No Hungarian after communism, or Cuban after Castro, is not aware that human rights are incompatible with cruelty. The debate here isn’t only how to protect the country. It’s how to protect our values.”
On June 22, 2009 Pres. Barack Obama signed Executive Order 13491–Ensuring Lawful Interrogations. In section 3(b) it provided:
Effective immediately, an individual in the custody or under the effective control of an officer, employee, or other agent of the United States government, or detained within a facility owned, operated or controlled by a department or agency of the United States, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation that is not authorized by Army Field Manual 2 22.3.
In section 4(a) the order provided “ The CIA shall close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future.”
The Order also created a special interagency task force on interrogation and transfer policies. The task force was told to provide a report to the president within 180 days unless an extension was necessary.
The Order required the CIA to use only 19 interrogation methods outlined in the United States Army Field manual on interrogations “unless the Atty. Gen. with appropriate consultation provides further guidance.”
It is unknown whether extraordinary renditions have been carried out since 2009.
Mahar Arar is a Canadian citizen who emigrated with his family from Syria at age 17. On September 26, 2002 he was detained by U.S. officials at JFK Airport in New York and interrogated about alleged links to al-Qaeda. Twelve days later he was chained, shackled and flown to Syria where he was held in a tiny “grave-like” cell for over then months. He was beaten, tortured and forced to make a false confession.
His wife, Mosia Mazigh, learned of his imprisonment and campaigned for his release. He was returned to Canada in October 2003. On January 24, 2004 the Canadian government established a Commission of Inquiry to review his treatment by Canadian officials. On September 18, 2006 the Commission of Inquiry cleared Arar of all charges stating “categorically there is no evidence to indicate that Mr. Arar has committed any offense or that his activities constitute a threat to the security of Canada.”
The government of Canada settled the case out of court and paid Arar $10.5 million (Canadian) and Prime Minister Stephen Harper formally apologized to Arar.
In contrast, in 2004 Arar brought a lawsuit in the U.S. in federal court in New York against John Ashcroft and others. The U.S. invoked the “state secrets privilege” and moved to dismiss the lawsuit. It was dismissed and upheld on appeal. Upon rehearing the Chief Judge of the Second Circuit Court of Appeals wrote, “If a civil remedy in damages is to be created for the harms suffered in the context of extraordinary renditions, it must be created by Congress…”
The U.S. Supreme Court declined to accept review of the case. The U.S. government has taken no steps to make amends to Mr. Arar and his family.
In a recent landmark decision, the European Court of Human Rights unanimously ruled in favor of Mr. El-Masri on December 12, 2012, corroborating details of his abduction and torture by the CIA and holding that the CIA’s treatment of Mr. El-Masri was torture.
Mr. El-Masri is a Lebanese-Canadian who was kidnapped by the CIA is Macedonia. With the assistance of the Macedonian government he was held incommunicado, severely beaten, sodomized, shackled and hooded, submitted to total sensory deprivation and harshly interrogated for over three weeks. He was then flown to Afghanistan where he was incarcerated in a small, dirty dark brick factory and beaten, kicked, threatened and interrogated for more than four months. When the CIA ultimately learned that he was the wrong person he was dumped on an isolated street in Albania.
In contrast, when Mr. El-Masri brought a case in the U.S. it was dismissed and upheld on national security grounds, as in Mr. Arar’s case, and again the U.S. Supreme Court refused to accept review of his case.
United Nations Special Rapporteur on Human Rights and Counter-Terrorism Ben Emmerson described the European Court of Human Rights ruling as “a key milestone in the long struggle to secure public accountability of public officials implicated in human rights violations committed by the Bush administration CIA in its policy of secret detention, rendition and torture.” He said that the U.S. government must issue an apology for its “central role in the web of systematic crimes and human rights violations by the Bush-era CIA, and to pay voluntary compensation to Mr. El-Masri.”
To date the U.S. government has not responded.
 The directive has not yet been publicly released. But see George Tenet, at the Center of the Storm: the CIA During America’s Time of Crisis 208 (Harper 2007).
 ICRC, Report to John Rizzo, Acting General Counsel, CIA. ICRC Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody, 14 February 2007, available at http://www.nybooks.com/doc/2010/04/22/icrc-report.pdf
 Military Order of November 13, 2001:Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism, Federal Register, Vol. 66, No.2, 16 November 2001, pp. 57831-36
 John Yoo and Robert Delahunty, Memorandum for William J. Haynes, II, General Counsel, Department of Defense, January 9, 2002.
 George Bush, The White House, Memorandum for the Vice President, et al, Harsh Treatment of Taliban and al-Qaeda detainees (7 February 2002).
 Alberto R. Gonzalez, Memorandum for the President, Decision re Application of the Geneva Conventions to Prisoners of War to the Conflict with Al Qaeda and the Taliban (25 January 2002).
 William H. Taft, IV, Legal Adviser, Department of State, Memorandum to Counsel to the President, Alberto Gonzalez, Comments on Your Paper on the Geneva Conventions (2 February 2002).
 CIA Inspector General’s Special Review: Counterterrorism, Detention, and Interrogation Activities, September 2001-October 2003, dated 7 may 2004 and publicly released on 24 August 2009, at 12 “CIA IG Report”).
 CIA IG Report at 21-22, fn. 26 and 37.
 A list of techniques is found in the CIA IG Report at 15.
 ICRC CIA Detainee Report at 4.
 ICRC CIA Detainee Report at 7. It is notable that the ICRC Report details the same interrogation techniques outlined in the CIA IG Report, which was not publicly available at the time.
 14. United Nations Human Rights Council, Joint Study on Global Practices in Relation to Secret Detention in the Context of Countering Terrorism of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the working group on arbitrary detention, and the Working Group on Enforced or Involuntary Disappearances, A/HRC/13/42, 19 February 2010, at 45-50 (“UN Joint Study”).
 UN Joint Study at para. 103.
 Testimony of Lawrence Wilkerson, Chief of Staff to Colin Powell U.S. Secretary of State, 2001-2005, before U.S. House of Representatives Judiciary Subcommittee on Civil Rights, June 18, 2008
 ICRC CIA Detainee Report, at 5, UN Joint Study at 45-50.