Torture Began at Guantánamo with Bush's Presidential Memo 12 Years Ago

A protest calling for the arrest of former U.S. President George W. Bush as he visited British Columbia, Canada in 2011 on a speaking engagement at an economic forum.

By Andy Worthington, February 7, 2014

This is a grim time of year for anniversaries relating to Guantánamo. Yesterday, February 6, was the first anniversary of the start of last year's prison-wide hunger strike, which woke the world up to the ongoing plight of the prisoners -- over half of whom were cleared for release by a Presidential task force over four years ago but are still held.

The hunger strike -- which, it should be noted, resumed at the end of last year, and currently involves dozens of prisoners -- also forced President Obama to promise to resume releasing prisoners, after a three-year period in which the release of prisoners had almost ground to a halt, because of opposition in Congress, and President Obama's unwillingness to overcome that opposition, even though he had the power to do so.

To mark the anniversary, a number of NGOs -- the ACLU, Amnesty International, the Center for Constitutional Rights, Human Rights First and Human Rights Watch -- launched a campaign yesterday, "Take a Stand for Justice," encouraging people to call the White House (on 202-456-1111) to declare their support for President Obama's recent call for Guantánamo to be closed for good (in his State of the Union address, he said, "With the Afghan war ending, this needs to be the year Congress lifts the remaining restrictions on detainee transfers and we close the prison at Guantánamo Bay"). Please call the White House if you can, and share the page via social media.

Today, February 7, is the 12th anniversary of the founding document of President Bush's torture program, announced in a short Presidential memo entitled, "Humane Treatment of Taliban and al- Qaeda Detainees."

This was the disturbing document in which President Bush declared that "none of the provisions of [the] Geneva [Conventions] apply to our conflict with al-Qaeda in Afghanistan or elsewhere through the world, because, among other reasons, al-Qaeda is not a High Contracting Party to Geneva." He added, "I determine that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under Article 4 of Geneva. I note that, because Geneva does not apply to our conflict with al-Qaeda, al-Qaeda detainees also do not qualify as prisoners of war."

As I explained in an article marking the 10th anniversary of this memo in 2012:

This was the rationale for holding prisoners neither as criminal suspects or as prisoners of war, but as a third category of human being, without any rights. [This] paved the way for the use of torture, as people with no rights whatsoever had no protection against torture and abuse, and to this end the most alarming passage in the memorandum is the President’s claim that “common Article 3 of Geneva does not apply to either al-Qaeda or Taliban detainees because, among other reasons, the relevant conflicts are international in scope and common Article 3 applies only to ‘armed conflict not of an international character.’”

As I also explained two years ago:

President Bush claimed that the prisoners would be “treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva,” but it was a meaningless addition. By refusing to accept that everyone seized in wartime must be protected from torture and abuse, and by removing the protections of common Article 3 from the prisoners, which prohibit “cruel treatment and torture,” and “outrages upon personal dignity, in particular humiliating and degrading treatment,” President Bush opened the floodgates to the torture programs that were subsequently developed, both for use by the CIA, and at Guantánamo.

The CIA's torture program -- for use in the agency's global network of secret torture prisons, or "black sites" -- was subsequently authorized, on August 1, 2002, through a series of memos that will forever be known as the "torture memos," written by John Yoo, a lawyer close to Dick Cheney, who worked in the Office of Legal Counsel, a branch of the Justice Department that is supposed to supply impartial legal advice to the executive branch. Instead, Yoo claimed that torture was not torture, and provided the "golden shield" that Bush administration officials used, and still use to try to prevent anyone holding them accountable for their actions.

Later, on December 2, 2002, defense secretary Donald Rumsfeld approved his own torture program for use at Guantánamo. This was originally intended for use on just one prisoner, Mohammed al-Qahtani, a Saudi considered to be an intended 20th hijacker for the 9/11 attacks, who was tortured for several months at the end of 2002 and the start of 2003 (see the harrowing interrogation log here, which runs from November 23, 2002 to January 11, 2003).

The torture of Mohammed al-Qahtani is the only example of torture admitted to by a senior Pentagon official, when, just before President Bush left office, Susan Crawford, who oversaw the military commissions at Guantánamo, told Bob Woodward of the Washington Post, "We tortured Qahtani. His treatment met the legal definition of torture."

Al-Qahtani, however, was not the only prisoner tortured at Guantánamo. As Neil A. Lewis reported for the New York Times in a powerful article in January 2005:

Interviews with former intelligence officers and interrogators provided new details and confirmed earlier accounts of inmates being shackled for hours and left to soil themselves while exposed to blaring music or the insistent meowing of a cat-food commercial. In addition, some may have been forcibly given enemas as punishment.

While all the detainees were threatened with harsh tactics if they did not cooperate, about one in six were eventually subjected to those procedures, one former interrogator estimated. The interrogator said that when new interrogators arrived they were told they had great flexibility in extracting information from detainees because the Geneva Conventions did not apply at the base.

Although these specific techniques eventually came to an end, the Bush administration's official use of torture did not come to an end until June 2006, when, in Hamdan v. Rumsfeld, the Supreme Court reminded the Bush administration that common article 3 of the Geneva Conventions applied -- and applies -- to all prisoners held by U.S. forces. Just over two months later, 14 "high-value detainees" were moved from secret CIA prisons to Guantánamo, and President Bush announced that the "black sites" -- whose existence he had previously denied -- had been closed down.

Torture, of course, did not come to an end. Many of the torture techniques migrated to Appendix M of the Army Field Manual, which was reissued on September 6, 2006, the very same day that the 14 "high-value detainees" arrived at Guantánamo, and the "black sites" were closed down.

More generally, it is worthwhile considering that the very function of Guantánamo is torture, as a place devoted to open-ended, and possibly unending imprisonment without charge or trial. In October 2003, this alarmed the International Committee of the Red Cross to such an extent that, although the organization is not supposed to make public statements, as part of its access arrangements, Christophe Girod, the senior Red Cross official in Washington D.C., told the New York Times, ''The open-endedness of the situation and its impact on the mental health of the population has become a major problem.''

He added, as the Times put it, that "in meetings with members of his inspection teams, detainees regularly asked about what was going to happen to them."

''It's always the No. 1 question,'' he said. ''They don't know about the future.''

Ten years and four months on from Mr. Girod's comments, it is difficult to gauge quite how much more crushing the impact on the prisoners' mental health has been in the intervening years, not just through their ongoing indefinite detention without charge or trial, but also as a result of the quashed hopes raised by President Obama's election in 2009, and, most horribly, the process whereby, in January 2010, 76 of the remaining 155 prisoners were told that they had been cleared for release, and would be released as soon as the necessary arrangements could be made -- but they have not been released.

To return to "Take a Stand for Justice," the campaign launched yesterday, the time is now to pick up the phone to the White House and to tell President Obama that the cleared prisoners -- those 76 men plus a 77th recently cleared for release by a Periodic Review Board -- must be released as soon as possible, that justice must be delivered as swiftly as possible to the other 79 men, who should be tried or released, and that no further delays are acceptable.