Confirmed: Torture at Guantanamo Bay Posted by The Editors

This is a guest post from Damon Terrill, co-chair of NSN's Iowa chapter.

The implications of Judge Susan Crawford’s recent determination that U.S. military interrogators tortured Guantanamo detainee Mohammed al-Qahtani are much broader than might initially be obvious. 

It is certainly significant, and profoundly regrettable, that this extraordinarily high value detainee will now almost certainly never be convicted of anything (whether he’ll remain in detention is another matter, of course).  But there has been scant attention so far to the more far-reaching potential consequences of Judge Crawford’s finding.

Consider the reasoning that informed this (impeccably credible person’s) conclusion that U.S. government employees engaged in torture while interrogating al-Qahtani:  It wasn’t that any single one of the methods that the interrogators employed amounted to torture.  It was that the interrogators applied those methods in combination, over the course of sufficient time, and with certain consequential and measurable effects, that caused the individually non-tortuous methods to become torture in their aggregate.

On first reaction, two observations:

(1) That means - or certainly could mean - that the approval of the techniques’ use in combination and over time (when coupled with the requisite intent) could amount to an approval of the commission of torture.  Any approval purporting to authorize the commission of torture was and is unlawful.  No employee of the United States Government (USG), whether the Secretary of Defense or the President of the United States, has the authority to authorize that which is unlawful; when a USG employee acts to approve or authorize the unlawful, he or she acts ultra vires (beyond authority), and the approval or authorization is without effect.  For the people who attempted to issue that unlawful approval (Donald Rumsfeld and his subordinates, initially), that’s no doubt problematic enough.  But Rumsfeld’s difficulties are minor in comparison with others’.

Any order by an officer of the U.S. military to employ interrogation techniques in a way (in combination, and over time) that amounted to torture would have been an unlawful order.  Every subordinate in the military is obligated to refuse to comply with unlawful orders.  Courts martial are the mechanism to determine if that’s happened.  There is considerable precedent for courts martial instituted to investigate and prosecute failures to fulfill just that obligation (and for having carried out the unlawful order itself). 

With Judge Crawford’s decision, we have a finding that the basis for literally hundreds of courts martial arising out of torture allegations could exist, involving potentially every uniformed person under the Secretary of Defense who took steps to carry out the unlawful orders that were based on the techniques’ ultra vires approval (or more precisely, the ultra vires approval of their use in combination and over time).

(2) Committing torture (as well as attempting and conspiring to commit torture) is a federal crime ( 18 U.S.C. §§ 2340-2340A), no matter who engages in the conduct, so long as they act “under the color of law.”  And it’s no misdemeanor.  In relevant part, the statute reads that: “[w]hoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.”

Consider that these techniques were eventually adopted and employed throughout the world.  We now know that they were first approved for use at Guantanamo, then in Iraq and Afghanistan; we have every reason to expect that they were employed throughout the network of CIA-run detention facilities, which were only closed down in late 2006 (as we understand it).  The recent U.S. Senate Armed Services Committee report details the spread of their application from GITMO outward. 

We now have it from the presently serving convening authority of the Guantanamo military commissions – incidentally, also the former General Counsel to the United States Army, and Pentagon Inspector General – that, when employed in combination and over time, those very techniques (can and did) amount to torture.

Which is to say, a United States government authority with direct and expert knowledge of the facts and law has now said that the conduct, facts, and circumstances likely to have obtained in hundreds (thousands?) of cases involving hundreds more USG employees may well have constituted the commission by those USG employees of a gravely serious felony, with an 8 year statute of limitations (none, if the victim died), and extremely serious potential penalties.  How will we know if those USG employees did, in those hundreds (thousands?) of cases, commit torture as proscribed by the statute?  That’s what criminal trials are for.  Add those trials to the courts martial taking place under the MCJ.

The combination creates the increasingly real possibility of a great many trials, producing (and broadcasting) a mountainous record of testimony, resulting in scores of convictions and sentences, and all taking place over the course of years.

One last thing:  If Judge Crawford is willing to say what she has said to Bob Woodward, I suspect very, very strongly that she has made certain that she will not be alone in expressing the essence of her view, not only in this case, but on the legal interpretation of the meaning of “torture” as it relates to the interrogation techniques used on al-Qahtani and untold others.  I assume too that she has arranged for others with similarly impeccable credentials to support her, to do so publicly, and to buttress her position in formal, legal contexts, as well.

Judge Crawford’s decision in the al-Qahtani case was only the beginning.  The examination of what has gone before in this aspect of the battle against terrorists will be gut wrenching, painful, and slow.  And unlike the prisons and interrogations that took place within them, this process will be very, very public.

Comments

[Ginette Dumais]

I agree with Susan Crawford. al-Qahtani has been more than tortured and nobody deserves to be tortured like that. It's a shame that America's president has tolerated this. With Mr. Barak Obama things may change for the best.

[Kayla]

I think that these things that are going on at Guantanamo Bay are HORRIBLE. If they were born here or came here to get away from that.. should they be persecuted? NO.