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Still Playing Cute With the Law
by Ken Sanders
February 9, 2005

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As the graphic images of torture, degradation, and abuse at Abu Ghraib slowly fade from America's collective consciousness and as scapegoats are prosecuted while those who created legal loopholes justifying torture are promoted to the President's Cabinet, it is worth noting that very little has actually changed. The U.S. and its proxies still engage in torture and abuse as part of the global war on terror. At the same time, the White House, Congress, and U.S. intelligence and law-enforcement agencies continue, in the words of Senator Lindsey Graham, “playing cute with the law.”

Senator Graham’s comments were directed toward Alberto Gonzales during the confirmation hearings before the Senate Judiciary Committee concerning Gonzales’ nomination to Attorney General. During those hearings, as was widely reported, Gonzales denounced the use of torture and performed heroic feats of logic to distance himself from the now-infamous “torture memos.” While it may have been refreshing to some to hear Gonzales condemn the use of torture, less refreshing was his refusal to define torture itself. As a result, by means of a semantic shell game, Gonzales and the White House can continue to authorize “aggressive” interrogation techniques while simultaneously decrying torture. How cute.

Nonetheless, on February 7, 2005, the Human Rights Commission of the arbitrarily irrelevant United Nations decried the treatment of prisoners in Afghanistan at the hands of foreign coalition forces. As in Iraq, the vast majority of foreign troops in Afghanistan are from the U.S. and the U.S. is the only foreign force with detention facilities. According to the Commission, foreign troops, in “a very unusual practice,” have assumed the authority to arrest and detain people, without legal process, and then proceed to mistreat and even torture them.

Cherif Bassiouni, the Commission's independent expert on human rights in Afghanistan and a professor of law at DePaul University, alleged on February 7 that hundreds of detainees are being illegally detained because they were arrested as combatants and therefore are prisoners of war. With the “war” in Afghanistan over and the Taliban defeated, the Third Geneva Convention mandates the detainees’ release “without delay.” Rejecting allegations of any impropriety, spokesman for coalition forces in Afghanistan, Major Mark McCann explained, “We don't arrest people, we detain individuals during the course of combat operations.” (Emphasis mine) Furthermore, according to Major McCann, the U.S. is “abiding by the spirit of the Geneva Convention.” Considering the fact that the U.S. admitted in December that eight prisoners died in Afghanistan while in U.S. custody (including four known cases of murder or manslaughter), maybe it ought to be abiding by the letter of the Conventions. In other words, maybe it ought to stop playing cute with the Geneva Conventions.

Also on February 7, eleven detainees alleged they were abused by U.S. troops in Afghanistan and Pakistan before being transferred to Guantanamo Bay, Cuba. The detainees’ allegations include beatings with chains, sexual humiliation, electrocution, and sodomy with foreign objects. All eleven detainees are from Kuwait and claim they were coerced into falsely confessing to being members of either the Taliban or al-Qaida. According to Pentagon spokesman Major Michael Shavers, the allegations of torture by the eleven men “fit the standard operating procedure in al-Qaida training manuals.” Nonetheless, despite years’ of detention, none of the eleven men have been charged with anything.

Major Shavers’ protestations to the contrary notwithstanding, the detainees’ allegations of torture and abuse are supported by a July 29, 2004 report by an FBI agent regarding his observations at Guantanamo.

According to the agent, detainees were chained to the floor in the fetal position without food or water and were usually left in their own urine and excrement for 24 hours or more; detainees were subjected to extreme heat and cold, on one occasion causing one detainee to literally rip the hair from his head; and at least one detainee was chained to the floor in an “unbearably hot" cell and subjected to extremely loud rap music for more than a day. In a report dated July 12, 2004, another FBI agent observed treatment "that was not only aggressive, but personally very upsetting.” Likewise, in a report dated December 5, 2003, an FBI agent reported Department of Defense interrogators posing as FBI agents while torturing inmates at Guantanamo. According to the agent, the use of torture “produced no intelligence of a threat neutralization nature” and “destroyed any chance of prosecuting” the detainees. The agent noted that if a tortured detainee were ever released from Guantanamo and his story made public, “DOD interrogators will not be held accountable because these torture techniques were done by the ‘FBI’ interrogators.” Talk about cute.

Speaking of Guantanamo, on February 4, 2005, six United Nations human rights experts, including Bassiouni, issued a statement of “continued concern” regarding U.S. treatment of detainees at Guantanamo Bay. In their statement, the six experts described recent U.S. efforts (at the behest of the U.S. Supreme Court) to bring practices at Guantanamo into compliance with both U.S. and international law as “insufficient to dispel the serious concerns.” The “serious concerns” include: the questionable legal basis for the continued detention of prisoners more than 18 months after the end of the wars in both Afghanistan and Iraq; the uncertainty regarding the remaining duration of the prisoners' detention; the unknown number of detainees at Guantanamo, creating an environment conducive to the unacknowledged transfer of inmates to other unknown, usually secret, detention facilities; and the fact that most detainees still have no access to legal counsel and are still not presented with evidence providing the basis for their detention.

In the meantime, Alberto Gonzales, the White House's solicitor of the “torture memos,” was confirmed as Attorney General. He was confirmed despite the revelation during the confirmation hearings that he and the White House exempted the CIA and other non-military personnel from prohibitions against torture. Indeed, at the White House's behest, in December congressional leaders abandoned a measure that would have imposed new restrictions on the use of “extreme interrogation measures” by intelligence officers at the CIA and elsewhere. Similarly, Michael Chertoff, the White House's nominee for Secretary of Homeland Security, reportedly advised the CIA on the legality of coercive interrogation methods. As reported by the New York Times, Chertoff apparently advised CIA officials that they would not be prosecuted for making a detainee believe he was about to drown. While Chertoff denies such reports, he cannot deny that as a federal judge he held that an individual who was beaten with canes, kicked in the face, forced to confess to crimes and renounce his political affiliation to escape death was not tortured. Like Gonzales, Chertoff is sure to be confirmed.

Thus, in America, the self-declared protector of the rule of law, at least as far as torture is concerned, the beat (or beatings) goes on. Ain't it cute.

Ken Sanders is an attorney based in Tucson, Arizona. Visit his weblog at:  He can be reached at:

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