On May 15, America was treated to a televised celebration of war, torture and indefinite detention – the South Carolina Republican primary debate. Blending politics with Hollywood, moderator Brit Hume spun a hypothetical question involving the proverbial “ticking time-bomb” scenario. The candidates all tried to out-do each other over who could be trusted to best disregard fundamental constitutional principles. It was close, but the award went to Mitt Romney who declared: “I’m glad they’re at Guantánamo. I don’t want them on our soil. I want them on Guantánamo, where they don’t get the access to lawyers [Mitt: it is our soil and we lawyers are still there.] … My view is we ought to double Guantánamo … And enhanced interrogation techniques have to be used.”
The media interpreted this spectacle as meat for the Republican base. But, they are far from the attitudes of the Red State fringe. These views on torture have been outlined by the Bush administration’s so-called legal minds who on the one hand claim “we do not torture,” while the other hand is busy torturing … under a new name. Or is it a new name? Those of us who thought the Bushies coined the phrase “enhanced interrogation techniques” forgot their lack of imagination. As Andrew Sullivan (blogger and reformed Bush supporter) has pointed out, the origins of the phrase can be traced to the German Gestapo. Sullivan reports that the phrase “Versch•rfte Vernehmung” is German for “enhanced interrogation”.
When the Nazis first put pen to paper regarding “enhanced techniques” their primary aim was to not leave physical signs of torture. In Bush speak, this is referred to as a “softening” method. Rumsfeld outlined these approved techniques in the memos circulated in 2002 and 2003, that permit interrogation techniques aimed at breaking the individual down, including “environmental adjustment,” “sleep adjustment,” “stress positions,” and “isolation.”
But Rummy was not the first Bushie to turn to the Gestapo handbook. John Yoo (then with the Justice Department’s Office of Legal Counsel, now a law professor at Berkeley) declared in a 2002 memo that prisoners in the “war on terror” did not enjoy the protections afforded to prisoners of war, because al-Qaeda and other terrorist organizations were “non-state” actors. In that same timeframe, Jay S. Bybee, then Justice Department lawyer (now an appellate judge on the Ninth Circuit) claimed that a prisoner’s treatment could be “cruel, inhumane or degrading, but still not produce pain and suffering of the requisite intensity to fall within [proscriptions on torture].” Bybee insisted that physical pain amounting to torture “must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”
Which leads us to Bush’s flunky Gonzales who heartily agreed with Yoo and Bybee, thereby securing the way for ever more “enhanced techniques”. In Gonzales’ memo to the President in 2002 he falsely concluded that language in the Geneva Conventions, specifically the prohibition on “outrages upon personal dignity” and “inhumane treatment,” were “undefined” and “difficult to interpret.” Thanks to these legal halfwits, the door to full-blown torture swung wide open, inviting in the physical abuse, psychological injury, physical abuse and death that followed.
At the very time that these Nazi era ideas were gaining currency in the highest echelons of American government, Guantánamo’s first inmates were arriving at Camp X‑Ray, including my client Al-Ghizzawi. Al-Ghizzawi had absolutely no intelligence value (unless we needed to know the price and quality of Afghan honey). Nevertheless, he was subjected to the most brutal forms of torture. I can’t give you the details of Al-Ghizzawi’s abuse because he still will not talk directly about it. He alludes to the brutality and one day I am confident he will talk. (Perhaps in testimony at The Hague?) Softening techniques, including sleep disruption and environmental adjustment, were still being used on Al-Ghizzawi and others during my recent visits to the gulag. Similarly, prisoner isolation now has Al-Ghizzawi and hundreds of other prisoners in the stultifying confinement of a new “supermax” facility, Guantánamo’s Camps 5 and 6.
If justice comes to those who wait, then wait we will. This criminal saga has its silver lining. Those same Nazis who claimed it was acceptable in times of war to use stress positions, environmental adjustments, hypothermia, water boarding, long forced standing as well as claiming that a lack of uniform allows for the most brutal of “techniques,” were themselves found guilty of war crimes and sentenced to death. The clever men and women of the Bush regime, who thought they could legalize torture by calling it “enhanced interrogation techniques” will hopefully be taught this simple lesson: torture is torture and by any other name is still illegal.