The President said at a press conference on November 29, 2005:
Bush : The United States of America does not torture. And that's important for people around the world to understand.
That unequivocal response is typical of all his public comments regarding torture. However, the actual record is more complicated.
Here we give a brief history of some key events in the evolution of recent US policy and practice regarding torture.
"The Dark Side"
Five days after the terrorist attacks of September 11, 2001, Vice President Cheney said the US would need to operate on the "dark side" and "use any means at our disposal" to combat terrorism. In an interview with NBC's Tim Russert on September 16, 2001, Cheney said:
Cheney: We also have to work, though, sort of the dark side , if you will. We've got to spend time in the shadows in the intelligence world. A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we're going to be successful. That's the world these folks operate in, and so it's going to be vital for us to use any means at our disposal, basically, to achieve our objective.
Within months of that interview, Bush issued a Presidential Order February 7, 2002 which stated that members of al Qaeda were not considered prisoners of war but were "enemy combatants" instead. As such they were not entitled to the Geneva Convention's prohibition on torture, which it defines as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person."
Meanwhile, some legal experts within the administration were arguing that the US interrogators might legally inflict pain short of "an extreme level," defined in graphic terms. A memo sent from the Justice Department to then-White House Counsel Alberto Gonzales on August 1, 2002 – which became known as the "Gonzales memo" because he requested it – laid out a permissive standard:
"Gonzales memo": We conclude that for an act to constitute torture . . . it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying severe physical injury, such as organ failure, impairment of bodily function, or even death.
The same memo went on to argue that US anti-torture law would not apply at all to interrogations of "enemy combatants" if ordered by the President in time of war, saying that the law "would be unconstitutional if it impermissibly encroached on the President's power to conduct a military campaign." It continued:
"Gonzales memo": As Commander-in-Chief, the President has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning military plans of the enemy. The demands of the Commander-in-Chief power are especially pronounced in the middle of a war in which the nation has already suffered a direct attack. In such a case, the information gained from interrogations may prevent future attacks by foreign enemies. Any effort to apply [the law against torture] in a manner that interferes with the President's direction of such core war matters as the detention and interrogation of enemy combatants thus would be unconstitutional.
That memo, which seemed to argue that the President could legally order torture, caused a public outcry when it became public in 2004. The Justice Department then quickly withdrew it, and Gonzales publicly dismissed it as “abstract legal theory.” The Justice Department then issued a new memo in December 2004 which argued that inflicting "severe" pain would be illegal under the anti-torture law, in contrast to "extreme" pain as stated in the Gonzalez memo. But the new memo pointedly did not discuss whether or not the Constitution permits the President to order torture in time of war, saying any such discussion was "unnecessary." It added, "Consideration of the bounds of any such authority would be inconsistent with the President's unequivocal directive that United States personnel not engage in torture."
A total of nine enlisted service members were convicted at court-martial or plead guilty to charges of prisoner abuse, and were discharged from the Army. Eight of the nine were given prison terms that ranged from six month to Graner's 10-year term. In addition, Army Reserve Brigadier General Janis Karpinski was demoted to the rank of Colonel and subsequently retired.
The CIA has said publicly that it is conducting its own investigations and holding its people accountable, but as of December 2005 no member of the US intelligence community has been publicly tried or accused of involvement in the abuses at Abu Ghraib.
Allegations of Torture and Abuse
The Post said secret facilities in a total of eight countries had been used to detain more than 100 suspected terrorists. Roughly 30 of those are considered “major terrorism suspects” and more than 70 were described as “less important” with indirect ties to terrorism.
The State Department, CIA and White House would neither confirm nor deny the existence of the secret prisons. On Nov 8 Republican leaders in Congress demanded to an investigation of how the story got out. Senate Majority Leader Bill Frist, R-TN, and Speaker of the House J. Dennis Hastert sent a letter to the House and Senate Intelligence Committee chairmen saying:
Frist and Hastert Letter: As you know, if accurate, such an egregious disclosure could have long-term and far-reaching damaging and dangerous consequences, and will imperil our efforts to protect the American people and our homeland from terrorist attacks.
The Post article raised new questions about the practice of “extraordinary rendition” – a process whereby the CIA or other U.S. government agencies may seize foreign nationals suspected of involvement in terrorism and ship them to detention centers for interrogation. Such centers may be in the US or overseas, including nations known for torturing their prisoners.
The practice was initiated and employed before the "war on terror" was touched off by the events of September 11, 2001. Presidential Decision Directives 39 and 62, written during the Clinton Administration, discuss rendition as a means to combat terrorism. The precise limits of the Clinton policy are not entirely clear: directive 39 states that all activities must be consistent with the procedures outlined in National Security Directive 77, but that document, issued by Bush's father when he was President, remains classified.
A chilling description of "rendition" surfaced in January, 2005 when the allegations of a German national, Khaled El-Masri, were reported in the British paper The Guardian . In December 2005, El-Masri filed a lawsuit against former CIA Director George Tenet in U.S. District Court. El-Masri said he was the victim of “inhumane conditions and coercive interrogation” when he was kidnapped by seven or eight men wearing black ski masks while he was on holiday in Macedonia, then flown to Afghanistan where he was detained in secret for months. El-Masri's legal brief states in part:
El-Masri allegation: He was beaten severely from all sides with fists and what felt like a thick stick. His clothes were sliced from his body with scissors or a knife, . . . his underwear was forcibly removed. He heard the sound of pictures being taken. He was thrown to the floor. His hands were pulled back and a boot was placed on his back. He then felt a firm object being forced into his anus.
. . . One of the men placed him in a diaper . . . [He] was marched to a waiting plane, with the shackles cutting into his ankles. Once inside, he was thrown to the floor face down and his legs and arms were spread-eagled and secured to the sides of the plane. He felt an injection in his shoulder, and became lightheaded. He felt a second injection that rendered him unconscious.
El-Masri claims to have been held in Afghanistan “in a single-person cell, with no reading or writing materials, and without once being permitted outside to breathe fresh air, for more than four months.” He was reminded that he was “in a country with no laws, and that no one knew where he was.” He lost 60 pounds as the result of a 37 day hunger strike he undertook after his requests for release, the chance to meet with an attorney, or for charges to be brought against him were continually ignored. He claims that his interrogations were “accompanied by threats, insults, pushing, and shoving.” He says he was finally released May 28th on a mountain road in Albania.
El-Masri was held even after his passport was confirmed as genuine and the case was discovered to be one of mistaken identity, according to several news organizations citing anonymous US government sources. And US Secretary of State Condoleezza Rice all but confirmed the incident when asked about it at a news conference in Germany Dec. 6, where she appeared alongside German Chancellor Angela Merkel:
Secretary Rice: As to the case of Mr. El-Masri, I am not going to comment on any specific case. There are reports to -- newspaper reports and, of course, I believe this is going to be a matter for litigation, so it's properly handled in that channel. I did say to the Chancellor that when and if mistakes are made, we work very hard and as quickly as possible to rectify them. Any policy will sometimes have mistakes and it is our promise to our partners that should that be the case, that we will do everything that we can to rectify those mistakes. I believe that this will be handled in the proper courts here in Germany and if necessary in American courts as well.
Merkel hinted strongly that Rice had apologized for the incident, saying:
Merkel: The American Government, the American Administration, has admitted that this man had been erroneously taken and that as such the American Administration is not denying that it has taken place. I am also very pleased to note that the American Secretary of State has said that such a mistake, if it occurred, has to be rectified.
The "Torture Amendment"
While the President has flatly stated that the United States does not torture, his administration for weeks resisted an amendment introduced by Senator John McCain, R-AZ, to legally ban inhumane treatment of anyone in US military custody. The President threatened to veto the entire defense spending bill if the McCain amendment were attached. However, he later agreed to it after it was accepted by large margins in both the House and Senate, and after McCain agreed to guarantee legal counsel for interrogators accused of inflicting torture or inhumane treatment.
The McCain amendment not only bans torture of any individual in US military custody, it also prohibits “cruel, unusual, and inhumane treatment or punishment." It would establish the revised Army Field Manual on Interrogation as the uniform guide for interrogations, whether or not the interrogators are members of the military or of an intelligence agency. Recent proposed revisions to the manual following the Abu Ghraib affair reportedly would prohibit the stripping of detainees, the use of police dogs, sleep deprivation and dietary restrictions. McCain's amendment was approved 90-9 in a Senate vote, and in the House by a vote of 308 to122.
The day after the House vote the President, in an Oval Office press briefing with McCain, announced an agreement and dropped his threat of a veto. McCain described the compromise:
McCain: In our negotiations, there was legitimate concerns [sic] raised by the administration concerning the rights of interrogators. And taking language from the Uniform Code of Military Justice, we provide them with legal counsel and certain protections that a reasonable person might view as carrying out of orders, not to contradict the Nuremberg decision, which, of course, said that obeying orders is not a sufficient defense.
The rest of the amendment's language, however, remained intact.
Before Bush accepted the amendment, the administration reportedly attempted to persuade McCain to exempt CIA interrogators. The Washington Post reported Oct. 25 that Vice President Dick Cheney made that request of McCain, but McCain refused. McCain is a former Navy pilot who was captured by the North Vietnamese and held for five years. He was tortured, and to this day is unable to lift his arms more than chest-high.
- by Justin Bank and Emi Kolawole
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“Intelligence Policy: Staff Statement No. 7,” National Commission on Terrorist Attacks Upon the United States.
“Memorandum of Admonishment,” Department of Defense. 17 January 2004.
Peirce, Paul. “Birthday celebration led to Abu Ghraib scandal,” Tribune-Review. 21 September 2005.
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