Last month was the 10th anniversary of the opening of the “war on terror” prison at Guantánamo, and as this year progresses it is appropriate to remember that there will be other grim 10-year anniversaries to note.
This week, one of those 10-year anniversaries passed almost unnoticed. On February 7, 2002, as Andrew Cohen noted in the Atlantic, in the only article marking the anniversary,
President George W. Bush signed a brief memorandum titled “Humane Treatment of Taliban and al Qaeda Detainees” (PDF). The caption was a cruel irony, an Orwellian bit of business, because what the memo authorized and directed was the formal abandonment of America’s commitment to key provisions of the Geneva Convention. This was the day, a milestone on the road to Abu Ghraib: that marked our descent into torture — the day, many would still say, that we lost part of our soul.
That is no exaggeration. Depriving prisoners seized in wartime of the protections of the Geneva Conventions was a huge and unprecedented step, and thoroughly alarming. And yet, despite criticism from Secretary of State Colin Powell (PDF), the administration pushed forward remorselessly towards the creation of an America that practiced arbitrary detention and torture.
Powell had been included in the paper trail that led to Bush’s memorandum of February 7, 2002, and he was particularly upset by a memo on January 25, 2002 (PDF), signed by White House Counsel Alberto Gonzales, but written by Vice President Dick Cheney’s legal counsel, David Addington, which claimed that the “new paradigm” that the “war on terror” presented “renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.”
In his memorandum, just two weeks later, Bush declared that “none of the provisions of Geneva 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.”
That was the rationale for holding prisoners neither as criminal suspects nor as prisoners of war, but as a third category of human being, without any rights, which was disturbing enough; but it also paved the way for the use of torture, since people with no rights whatsoever had no protection against torture and abuse. To that 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.’”
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 prohibits “cruel treatment and torture,” and “outrages upon personal dignity, in particular humiliating and degrading treatment,” Bush opened the floodgates to the torture programs that were subsequently developed for use both by the CIA and at Guantánamo.
As the months pass in this 10th anniversary year, a handful of astute journalists will remember some of the other events and their 10th anniversaries — the notorious “torture memos” of August 1, 2002, for example, also known as the Bybee memos, which were written by John Yoo, an attorney in the Justice Department’s Office of Legal Counsel (and another member of Dick Cheney’s inner circle), and signed by Yoo’s boss, Jay S. Bybee. Those two memos sought to redefine torture so that torture techniques like waterboarding could be used by the CIA.
Later, on December 2, 2002, Defense Secretary Donald Rumsfeld approved his own torture program for use at Guantánamo (PDF). It was apparently intended for use on just one prisoner, Mohammed al-Qahtani, whose torture is the only example of Bush’s torture program admitted to by a senior Pentagon official (Susan Crawford, who oversaw the military commissions under George W. Bush). However, 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.
Bush’s memo opening the floodgates to torture did not become public knowledge until 2004, when, after the Abu Ghraib scandal broke, other damaging documents — including one of the “torture memos” — were also released. By June 2006, the torture program officially came to an end, when the Supreme Court ruled, in Hamdan v. Rumsfeld, that common Article 3 applied to all prisoners held by US forces. Three months later, Bush’s secret CIA torture prisons were emptied, and the last of the “high-value detainees” held were moved to Guantánamo.
Nevertheless, the 10-year anniversary of Bush’s original “torture memo” remains enormously significant, because Barack Obama refused to hold any Bush administration officials accountable for their actions, and because 171 men are still held at Guantánamo. Many of them — if not most of them — continue to be held because of deeply unreliable information extracted through the use of torture or other forms of coercion in the four years and four months that America refused to acknowledge that it had any obligation to treat prisoners humanely and not to torture them.
The failure to pursue accountability and the acceptance of Guantánamo’s continued existence has led to the depressing situation recorded this past Tuesday — on the largely ignored 10th anniversary of Bush’s “torture memo” — when, as the Washington Post reported, a poll showed that, when kept in ignorance and stoked with permanent fear-mongering, 70 percent of Americans “approve of Obama’s decision to keep open the prison at Guantánamo Bay.”
Ten years after Guantánamo opened, such polling shows only that the need to provide education about the prison, and for the president to provide strong, moral and just leadership, is stronger than ever.