Bush defends secret prisons, harsh interrogations

On the morning of Sept. 4, a plane landed at the base housing the US military prison in Guantánamo Bay, Cuba, where 445 terrorist suspects are held. Shackled and in hoods, 14 figures disembarked, the latest detainees at a camp that for years has been at the center of international controversy. In fact, however, they were veterans of a prison system that had caused, if possible, even greater outrage: the network of secret camps operated by the CIA outside the US, where the most ruthless interrogation practices have been applied in the name of extracting information from "detainees" in President Bush's "war on terror." Two days later, in a nationally televised address from the White House, and just five days before the fifth anniversary of the Sept. 11, 2001, attacks, Bush for the first time acknowledged the existence of these "black sites" inhabited by "ghost" prisoners beyond the reach of any authority, whether Congress, the Red Cross or US and international law. "This program has been, and remains, one of the most vital tools in our war against the terrorists," Bush said. According to officials and reports from Washington, there were eight camps in all. Among the locations were Afghanistan, Qatar, Thailand, the Indian island base of Diego Garcia, as well as Poland and Romania. The system was set up at the start of 2002. In the four and a half years since, some 100 "detainees" have passed through the network. These were no ordinary prisoners, however. They were the highest-value targets who, the CIA believed, possessed information about ongoing terrorist plots. To obtain this information, all means were considered justified. Some inmates were kept for a period in the camps and then sent on under the practice known as "rendition" to friendly countries, Jordan, Pakistan and Egypt among them, where they faced equally brutal treatment, if not worse. Others, it is believed, were sent on to Guantánamo. A few, however, stayed. The 14 new inmates at Guantánamo include the most famous al-Qaida captives: among them Abu Zubaydah, a supposedly key coordinator of the organization, seized in Pakistan in March 2002; Ramzi bin al-Shibh, an accused facilitator for the Sept. 11 attacks; and the alleged main planner, Khaled Sheikh Mohammed. In the past week, more details have become available of the "enhanced" interrogation techniques to which these prisoners were subjected. A Justice Department memo of August 2002 gives a flavor, with its conclusion that methods stopping just short of those causing pain comparable to "organ failure, impairment of bodily function or even death" were legally permissible. In practice these techniques included practices such as "waterboarding" or simulated drowning, painful slapping and pummeling, extreme isolation, as well as sleep deprivation and intense noise or light bombardment. Most people would conclude that these methods amount to torture. However Bush insisted anew that the US did not engage in torture. Instead he described the methods as an "alternative set of procedures" that were deemed to be lawful. That legal determination, however, was provided by the eminently pliant Alberto Gonzales, then White House counsel and now Attorney-General, and by hard-line Justice Department lawyers who believed that the president, as commander-in-chief, could do as he pleased in time of war. To many of Bush's allies, it is time to free intelligence officials from "legislative purgatory" and get the CIA back in the business of effective interrogations of suspected terrorists. That chance could come this week if the Senate takes up a White House proposal limiting the punishable offenses that CIA interrogators may face when questioning "high-value" terrorist suspects. Senate Majority Leader Bill Frist (R-TN) is expected to begin debate on the bill this week. Through omissions and legal definitions, the proposal could authorize harsh techniques that critics contend violate the Geneva Conventions, which govern the treatment of war prisoners. The proposal would shield CIA personnel from liability under a 1996 law intended to uphold the Geneva Conventions. In his speech, Bush announced sending this plan to Capitol Hill, the same day the Pentagon issued rules forbidding military personnel from using those same harsh techniques. According to the proposed legislation, the CIA would be given the right to continue using them, and the courts would be forbidden from intervening. The Supreme Court ruled in June, in Hamdan v. Rumsfeld, against Bush's claim that interrogators did not have to comply with the Geneva Conventions when dealing with members of al-Qaida. The court's decision to grant suspected terrorists certain rights potentially exposed US personnel to prosecution under the War Crimes Act. The new bill would keep the courts from that kind of meddling, said John C. Yoo, a law professor at the University of California, Berkeley, and a former Justice Department official who helped develop the administration's early legal response to terrorism. Indeed, the proposed legislation takes pains to try to ensure that the Supreme Court will not have a second chance to interfere. "The act makes clear," it says in its introductory findings, "that the Geneva Conventions are not a source of judicially enforceable individual rights." The proposed legislation would provide retroactive immunity from prosecution to government agents who used harsh methods after the Sept. 11 attacks. And, as Bush suggested, it would ensure that those techniques remain lawful. "As more high-ranking terrorists are captured, the need to obtain intelligence from them will remain critical," Bush said. "And having a CIA program for questioning terrorists will continue to be crucial to getting life-saving information." The new bill would continue to give the CIA the substantial freedom it has long enjoyed, while the revisions to the Army Field Manual would further restrict military interrogators. However, the legislation would leave open the possibility that the military could revise its own standards to allow the harsher techniques. Administration officials said the CIA tactics would be legal and fall well short of torture and abuse. But the president and others have pointedly refused to say what those tougher methods might be. "I cannot describe the specific methods used–I think you understand why," Bush said. "If I did, it would help the terrorists learn how to resist questioning, and to keep information from us that we need to prevent new attacks on our country. But I can say the procedures were tough, and they were safe and lawful and necessary." The new legislation would interpret "outrages upon personal dignity" relatively narrowly, adopting a standard enacted last year in an amendment to the Detainee Treatment Act proposed by Senator John McCain (R-AZ). The amendment prohibits "cruel, inhuman or degrading treatment or punishment" and refers indirectly to a US constitutional standard that prohibits conduct which "shocks the conscience." There is substantial room for interpretation, legal experts said, between Common Article 3's strict prohibition of, for instance, humiliating treatment and the McCain amendment's ban only on conduct that "shocks the conscience." The proposed legislation, said Peter S. Margulies, a law professor at Roger Williams University, "seems to be trying to surgically remove from our compliance with Geneva the section of Common Article 3 that deals with humiliating and degrading treatment." The net effect of the new legislation in the interrogation context, Professor Yoo said, is to allow the CIA flexibility of the sort that the revisions to the Army Field Manual have denied to the Pentagon. The bill lets the CIA "operate with a freer hand" than the Defense Department "in that space between the Army Field Manual and the McCain amendment," he said. CIA methods condemned Last May, the UN Committee against Torture called on the United States to close Guantánamo and any secret facilities as they were illegal, but the US State Department rejected the recommendations as being beyond the committee's mandate. UN Secretary General Kofi Annan questioned the Bush administration's view. "I cannot believe that there can be a trade between the effective fight against terrorism and protection of civil liberties," he said. "If as individuals we are asked to give up our freedom, our liberties, our human rights, as protection against terrorism, do we in the end have protection?" Rene van der Linden, president of the parliamentary assembly of the Council of Europe, an intergovernmental watchdog agency, said in a statement that "kidnapping people and torturing them in secret–however tempting the short-term gain may appear to be–is what criminals do, not democratic governments." "In the long term, such practices create more terrorists and undermine the values we are fighting for," he said. "Europe will have no part in such a degrading system." His group conducted an investigation of the CIA prison system. "We cannot condone the existence of secret prisons," said Javier Solana, the European Union's foreign policy chief. François Heisbourg, a military analyst at the Foundation for Strategic Research in Paris, said that people in France are astounded that US troops had to be told specifically not to employ what are widely viewed in Europe as old torture techniques, particularly waterboarding. "This hearkens back to one of the favorite practices of the Gestapo–the bathtub torture, which was a synonym for waterboarding," he said. "The notion that the US Army has to say explicitly that you shouldn't do this is unfortunately a way of saying that it may indeed have been standard operating procedure at the time." Questions raised about Bush's claims In defending the secret network of prisons, Bush said the detention system had used lawful interrogation techniques, was fully described to select members of Congress and led directly to the capture of a string of terrorists over the past four years. A review of public documents and interviews with US officials raises questions about Bush's claims on all three fronts. The Bush administration has yet to make public the legal papers prepared by government lawyers that served as the basis for its determination that those procedures did not violate US or international law. The president said the Department of Justice approved a set of aggressive interrogation practices for CIA detainees in 2002 after milder ones proved ineffective on Abu Zubaydah. The memorandum was repudiated in another Justice Department document at the end of 2004, and Congressional officials said that they had not received documents from the administration explaining the legal underpinnings of the program. Some lawmakers questioned Bush's claims that his administration fully briefed some members of Congress on details of the secret detention program. Senator John D. Rockefeller IV of West Virginia, the ranking Democrat on the Senate Intelligence Committee, said that the Bush administration had "withheld details of the CIA detention and interrogation program from the Congressional intelligence committees." Congressional officials said that the Senate Intelligence Committee was briefed about the existence of the CIA detention program but was not informed about the locations of the secret prisons. Public documents show that some of the information that led to the arrests of Khalid Shaikh Mohammed and Ramzi bin al-Shibh was known before the CIA detained its first prisoner, Zubaydah, in the spring of 2002. Bush said it was Zubaydah who disclosed to CIA interrogators that Mohammed was the mastermind of the Sept. 11 attacks and often used the alias Mukhtar, sometimes spelled Muktar. "This was a vital piece of intelligence that helped our intelligence community pursue KSM," Bush said, referring to the terror suspect by his initials. The report of the Sept. 11 commission said that the CIA knew of the moniker for Mohammed months before the capture of Zubaydah. According to the report, the CIA unit given the task of tracking Osama bin Laden had intercepted a cable on Aug. 28, 2001, that revealed the alias of Mohammed. Bush also said it was the interrogation of Zubaydah that identified bin al-Shibh as an accomplice in the Sept. 11 attacks. US officials had identified bin al-Shibh's role in the attacks months before Zubaydah's capture. CIA spokesman Paul Gimigliano said that the agency had vetted the president's speech and stood by its accuracy.