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Rebecca Gordon. American Nuremberg. The unpunished crimes like Dick Cheney, George Bush, and Donald Rumsfeld in the Global War on Terror

 

Rebecca Gordon

 

 

Rebecca Gordon received her B.A. from Reed College and her M.Div. and Ph.D. in Ethics and Social Theory from Graduate Theological Union. She teaches in the Philosophy department at the University of San Francisco and for the universitys Leo T. McCarthy Center for Public Service and the Common Good. Previous publications include Letters From Nicaragua  and Cruel and Usual: How Welfare Reform Punishes Poor People .

 

Her latest book, American Nuremberg: The Officials Who Should Stand Trial for Post 9/11 War Crimescomes out from Hot Books in April 2016.

 

Prior to her academic career, Gordon spent a few decades working in a variety of national and international movements for peace and justice. These include the movements for womens liberation and LGBT rights; movements in solidarity with the struggles of poor people in Central America; the anti-apartheid movement in the United States and South Africa; and movements opposing U.S. wars in Iraq and Afghanistan.

 

In 1984, Gordon spent six months living in the war zones of Nicaragua, and in 1990, three months teaching desktop publishing at an anti-apartheid newspaper in Cape Town, South Africa. She is a founder of Californians for Justice, a statewide organization dedicated to the political enfranchisement of marginalized people, especially young people, poor people, and people of color.

 

Other organizations she has worked with include the Applied Research Center, the Center for Third World Organizing, Mujeres Unidas y Activas, and the Asian-Pacific Environmental Network. She is an editor of WarTimes/Tiempo de guerras (http://www.wartimes.org/), which seeks to bring a race, class, and gender perspective to issues of war and peace.

Download Rebeccas CV.

https://mainstreamingtorture.org/about/

 

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http://www.tomdispatch.com/blog/176166/

Tomgram: Rebecca Gordon,
How Extrajudicial Executions Became "War" Policy in Washington

[Note for TomDispatch Readers:I think you're just great! What a responseTDsubscribers gave to my recent request for donations in a pitch letter themed for honesty. ("Rest assured,TomDispatchis not down to its last dollar; its not sinking in a sea of red ink. Were not going to shut down if you dont give us something. Were okay.") It says something about who you are and what this site means to you (and warms my heart). Thanks to so many of you who decided to contribute,TDwriters will all get paid a little more this year and I'll have some extra bucks for expenses of all sorts.  It's a godsend and I can't thank you enough.  If there were any of you who meant to give something and were distracted by life before you did, it's never too late.  Just visitour donation pageany time. Tom]

Strangely, amid the spike in racial tensions after the killing of two black men by police in Louisiana and Minnesota, and of five white police officers by a black sharpshooter in Dallas, o­ne American reality has gone unmentioned.  The U.S. has been fighting wars -- declared, half-declared, and undeclared -- for almost 15 years and, distant as they are, theyve been coming home in all sorts of barely noted ways.  In the years in which the U.S. has up-armored globally, the country has also seen an arms race developing o­n the domestic front.  As vets have returned from their Iraq and Afghan tours of duty, striking numbers of them have goneinto police workat a time when American weaponry, vehicles, and military equipment -- including, for instance,MRAPs(mine-resistant ambush protected vehicles) -- havepouredoff Americas distant battlefields and,viathe Pentagon, into police departments nationwide.  And while the police weremilitarizing, gun companies have beenmarketingbattlefield-style assault rifles to Americans bythe millions, at the very moment when it has become ever more possible for citizens to carry weapons of every sort in a concealed oropenfashion in public.

The result in Dallas: Micah Johnson, a disturbed Army Reserves veteran, who spent a tour of duty in Afghanistan and practiced military tactics inhis backyard, armed with anSKS semi-automatic assault rifle, wearing full body armor, and angry over police killings of black civilians, took out those five white officers.  o­ne of them was a Navy vet who hadservedthree tours of duty in Iraq and another a former Marine who hadtrainedlocal police for DynCorp, a private contractor, in Iraq and Afghanistan.  Meanwhile, civilian protesters,also armedwith assault rifles (quite legal in the streets of Dallas), scattered as the first shots rang out and were, in some cases, taken in by the police as suspects.  And at least two unarmed protesters werewoundedby Johnson.  (Think of that, in his terms, as collateral damage.)  In the end, he would be killed by a Remotec Andros F5 robot, built by weapons-maker Northrop Grumman,carryinga pound of C4 plastic explosive, and typical of robots that police departments nowpossess.

In other words, this incident was capped by the first use of deadly force by a drone in the United States.  Consider that a war-comes-home upping of the ante.  Already,reportsthe Defense o­ne website, makers of military-grade robots -- a burgeoning field for the Pentagon -- are imagining other ways to employ such armed bots not o­nly o­n our distant battlefields but at home in a future in which they will be useful, cheap, and ubiquitous, and capable ofTasingas well as killing.

Of course, among themany thingsthat have alsocome homefrom the countrys wars, Predator and Reaper drones are now flying over the homeland o­n missions forthe Pentagon, not to mention theFBI, theBorder Patrol, and other domestic agencies.  So the future stage is set.  o­nce youve used any kind of drone in the U.S. to kill by remote control, its o­nly logical -- given some future extreme situation -- to extend that use to the skies and so consider firing a missile at some U.S. target, as the CIA and the Air Force have been doing regularly for years in places like Afghanistan, Pakistan, Yemen, and Somalia. And of course, in our domestic arms race, with small drones commercially available to anyone and the first of themarmed(no matter the rudimentary nature of that armament), its not hard to imagine a future Micah Johnson, white or black, using o­ne of them sooner or later.  After all, Johnson was already talking about planting IEDs (the term for insurgent roadside bombs in our war zones) and a flying IED is a relatively modest step from there.

So, welcome to the home front, folks.  And speaking of drones, its worth giving a little thought to what might, in fact, still come home, to the sort of example that two administrations have set by turning the president into anassassin-in-chiefand regularly creating law for themselves when it comes to the targeting of distant peoples.  In that light,TomDispatchregularRebecca Gordon considers Americas Trojan Horse technology of death and just what it may someday smuggle into the homeland.Tom


The Trojan Drone
An Illegal Military Strategy Disguised as Technological Advance
ByRebecca Gordon

Think of it as the Trojan Drone, the ultimate techno-weapon of American warfare in these years, a single remotely operated plane sent to take out a single key figure. It's a shiny video game for grown ups -- aMortal KombatorCall of Dutywhere the animated enemies bleed real blood. Just like the giant wooden horse the Greeks convinced the Trojans to bring inside their gates, however, the drone carries something deadly in its belly: a new and illegal military strategy disguised as an impressive piece of technology.

The technical advances embodied in drone technology distract us from a more fundamental change in military strategy. However it is achieved -- whether through conventional air strikes, cruise missiles fired from ships, or by drone -- the United States has now embraced extrajudicial executions o­n foreign soil. Successive administrations have implemented this momentous change with little public discussion. And most of the discussion weve had has focused more o­n the new instrument(drone technology) than o­n its purpose (assassination). Its a case of the means justifying the end. The drones work so well that it must be all right to kill people with them.

The Rise of the Drones

The Bush administrationlaunchedthe assassination program in October 2001 inAfghanistan, expanded it in 2002 toYemen, and went from there. Under Obama, with an actual White House kill list, the use of drones has again expanded, this time nine-fold, with growing numbers of attacks in Pakistan, Yemen, Libya, and Somalia, as well as in the Afghan, Iraqi, andSyrianwar zones.

Theres an obvious appeal to a technology that allows pilots for the CIA, Joint Special Operations Command, or the Air Force to sit safely in front of video screens in Nevada or elsewhere in the U.S., while killing people half a world away. This is especially true for a president running a global war with a public that does not easily accept American casualties and a Congress that prefers not to be responsible for war and peace decision-making. Drone assassinations have allowed President Obama to spread the war o­n terror to ever more places (even as he quietlyretiredthat phrase), without U.S. casualties or congressional oversight and approval.

One problem has, however, dogged the drone program from the beginning: just likeconventional air strikes, remotely targeted missiles and bombs tend to kill the wrong people. Over the last seven years, the count of civilians killed by drones has been mounting. Actual figures are hard to come by, although a number ofnongovernmental organizationsandjournalistshave done a good job of collating information from a variety of sources and offering reasonable estimates.

Analysis from all these sources suggests that there are at least three reasons why civilians die in such attacks.

1.The intelligence information o­n the individual targeted is often wrong.He isntwherethey think he is, or he isnt evenwhothey think he is. For example, in 2014 a British human rights organization, Reprieve,compiled data o­n drone strikes that targeted specific individuals in Yemen and Pakistan.According totheGuardian, Reprieves work

indicates that even when operators target specific individuals -- the most focused effort of what Barack Obama calls 'targeted killing' -- they kill vastly more people than their targets, often needing to strike multiple times. Attempts to kill 41 men resulted in the deaths of an estimated 1,147 people, as of 24 November [2014].

Some of these men were reported in the media as killed multiple times. Even if they didnt die in the first, second, and in some cases third attempts, other people certainly did. Reprieve alsoreportsone particularly egregious case of mistaken identity:

Someone with the same name as a terror suspect o­n the Obama administrations kill list was killed o­n the third attempt by U.S. drones. His brother was captured, interrogated, and encouraged to tell the Americans what they want to hear: that they had in fact killed the right person.

2.There isnt even a named target.The CIA has long based drone assassination targeting for many missions not o­n direct intelligence about a particular individual, but o­n what it calls the signature of possible terrorist activity (that is, the behavior or look of people below). Such signature strikes target unidentified individuals based o­n some suspicious activity, usually picked up through drone surveillance. Such a signature can be asill definedas a gathering of men, teenaged to middle-aged, traveling in convoys or carrying weapons in countries where many men may be armed. Unfortunately, while such a gathering may indeed indicate some kind of military activity, it may also describe a rural wedding in, say,Yemen, involving driving in convoy from the grooms town to the brides, accompanied sometimes by celebratory gunfire.

Not everyone in the government is convinced that signature strikes are a good idea. In 2012, theNew York Timesreportedthis joke at the State Department: When the C.I.A. sees three guys doing jumping jacks, the agency thinks it is a terrorist training camp.

The fact that signature strikes continue to this day suggests that Secretary of State John Kerry was not entirely truthful when, in 2013, hesaidat a BBC forum: The o­nly people that we fire a drone at are confirmed terrorist targets at the highest level after a great deal of vetting that takes a long period of time. We dont just fire a drone at somebody and think theyre a terrorist.

3.They were in the way, and so became collateral damage.This is the term military theorists regularly use to describe human beings or civilian infrastructure unavoidably destroyed in an attack o­n a legitimate military target. Of course, a drone operators understanding of the term unavoidable may be different from that of a woman whohas just lostthree of her four sons as they were returning home from shopping for supplies to celebrate Eid-al-Fitr, the end of the holy month of Ramadan.

In addition, drone strikes dont just kill people,including women and children; they also destroy buildings and other property. For example, the Bureau of Investigative Journalismsaysthat, in Pakistan, more than 60% of all strikes target domestic buildings -- peoples houses. In other words, collateral damage often refers to the destruction of the homes of any survivors of a drone attack.

Not surprisingly, people dont like living in terror of deadly missiles screaming out of a clear blue sky. Many observers havearguedthat terrorist organizations have used widespread fear and anger over drone attacks as a recruiting tool. Al-Qaeda and ISIS appear to offer Pakistanis, Yemenis, and others an alternative to simply waiting for an attack they cant prevent. The CIA itself recognized the counterproductive potential of drone killings, which they call HVT [High Value Target] operations. A leaked July 2009CIA reporton Best Practices in Counter-Insurgency outlines the issues:

Potential negative effects of HVT operations include increasing the level of insurgent support, causing a government to neglect other aspects of its counterinsurgency strategy, altering insurgent strategy or organization in ways that favor the insurgents, strengthening an armed groups bond with the population, radicalizing an insurgent groups remaining leaders, creating a vacuum into which more radical groups can enter, and escalating or deescalating a conflict in ways that favor the insurgents.

So there are long-term strategic problems with targeted killings by drone. In addition, drones may help spread and intensify terror movements and insurgencies, rather than destroying them or their leaderships. Often, as Andrew Cockburn has made clear in his bookKill Chain, the successors to leaders assassinated by droneturn out to beyounger, more effective, and more brutal. 

There is, however, another problem with this sort of warfare. Such killings -- at least when they take place outside a declared war zone -- are almost certainly illegal; that is, they are murders, plain and simple.

Targeted Killing Is Murder

In my household we have a rule: were not allowed to kill something just because were afraid of it. This has saved the lives of countless spiders and other creatures sporting (in my view at least) too many legs.

Whatever your view o­n arachnids, should it really be permissible to killpeoplesimply because we are afraid of them? After all, thats what these drone assassinations are -- extrajudicial executions of people someone believes we should be afraid of. It is easier to see an illegal execution for what it is when the killer is not separated from the target by thousands of miles and a video screen.  Drone technology is really a Trojan Horse, a distracting, glitzy means of smuggling an illegal and immoral tactic into the heart of U.S. foreign relations.

Not all killing is illegal, of course. There are situations in which both international and U.S. laws permit killing. o­ne of these is self-defense; another is war. However, a war waged against a tactic (terrorism), or even more vaguely, against an emotion (terror) is o­nly metaphorically a war. Under international law, real wars, in which it is legal to kill the enemy, involve sustained combat between organized military forces.

Outside of the fighting in Iraq, Afghanistan, and now possibly Syria (where Congress has arguably never even declared war), the war o­n terror is not a war at all. It is instead a conflict with an ever-expanding list of targets, no defined geographical boundaries, and no foreseeable endpoint. It is a campaign against any conceivable potential U.S. enemy, fought in fits and starts in many countries o­n several continents. It involves o­ngoing covert operations largely hidden from everyone except its targets. As an undertaking, it lacks the regular, sustained conflict between armies that characterizes war in the legal sense. Such operations fit another category far better: assassination, illegal at least since President Jimmy CartersExecutive Order 12036, which stated, No person employed by or acting o­n behalf of the United States Government shall engage in, or conspire to engage in, assassination.

Nor is the Middle East the o­nly region where the United States is using targeted killing outside a shooting war. The U.S. military alsodeploys dronesin parts of Africa. In fact, President Obamas nominee to head U.S. Africa Command, Marine Lieutenant General Thomas Waldhauser, recentlytoldSenator Lindsay Graham that he thinks he should be free to order drone killings o­n his own authority.

So much for war and war. What about self-defense? At every stage of the war o­n terror, Washington has claimed self-defense. That was the explanation forrounding uphundreds of Muslims living in the U.S. immediately after the attacks of 9/11, torturing some of them, and holding them incommunicado for months in a Brooklyn, New York, jail. It was the excuse offered for beginningtorture programsin CIA black sites and at Guantánamo. It was the reason the U.S. gave for invading Afghanistan, and later for invading Iraq -- before, as Bush administrationrepresentativesandthe president himselfkept saying, the smoking gun of Saddam Husseins supposed weapons of mass destruction turned into a mushroom cloud over, presumably, some American city.

And self-defense has been the Justice Departments rationale for targeted killing as well. In a November 2011paperprepared by that department for the White House, its author (identity unknown) outlined the necessary conditions to make a targeted killing legal:

(1) an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States;

(2) capture is infeasible, and the United States continues to monitor whether capture becomes feasible; and

(3) the operation would be conducted in a manner consistent with applicable law of war principles.

That would seem to rule out most U.S. targeted killings. Few of their targets were people o­n the verge of a violent attack o­n the United States or U.S. soldiers in the field. Ah, but in the through-the-looking-glass logic of the Obama Justice Department, imminent turns out not to mean imminent in the sense that something is about to happen. As that document explains: The condition that an operational leader present an imminent threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack o­n U.S. persons and interests will take place in the immediate future.

It turns out that the threat from any operational leader is always imminent, because with respect to al-Qaeda leaders who are continually planning attacks, the United States is likely to have o­nly a limited window of opportunity within which to defend Americans. In other words, o­nce a person has been identified as an al-Qaeda or allied group leader, he is by definition continually planning attacks, always represents an imminent danger, and so is a legitimate target. Q.E.D.

In fact, few enough of these targeted killings, including the signature o­nes can be defended as instances of self-defense. We should call them what they really are: extrajudicial executions.

The U.N. Special Rapporteur o­n Extrajudicial, Summary, or Arbitrary Executions has agreed with this view. In his 2013 report to the General Assembly, Christof Heynsnotedthat international human rights law guarantees a right to life. This right is enshrined in the 1948 Universal Declaration of Human Rights and given legal force in, among other treaties, the International Covenant o­n Civil and Political Rights, to which the United States is a party. There certainly are legal limits to the right to life, including -- in countries that have the death penalty -- the states right to execute a person after a legitimate trial. To execute someone without a trial, however, is an extrajudicial killing and a human rights crime.

Obama Comes Clean

By the middle of President Obamas second term in office, criticism of this extrajudicial killing program, and especially of the civilian deaths involved, had mushroomed. So, in May 2013, at least 11 years after the program was launched, the presidentannounceda shift in drone strategy, telling an audience at the National Defense University that the U.S. would engage in targeted killings of al-Qaeda militants o­nly when there was a near-certainty that no civilians would be injured. He added that he was planning to make the drone program more transparent than it had been and to transfer most of its operations from the CIA to the Pentagon.

In the two years since, little of this has happened. Although Obama has continued the job ofpersonally approvingdrone targets, the CIAstill runsmuch of the program.

On July 1st, he did finally take a step towards providing greater transparency. The Office of the Director of National Intelligenceissueda report stating that, outside of more conventional war zones like those in Syria, Afghanistan, and Iraq, U.S. airstrikes have killed 64 to 116 civilian bystanders and about 2,500 members of terrorist groups. These estimates are, in fact, quite a bit lower than those supplied by the various groups that track such killings. Note as well that, legally speaking, not o­nly the collateral damage victims, but all those that Americans identified as members of terrorist groups died via illegal, extrajudicial executions.

The document fulfills o­ne of the requirements of a newly issuedexecutive order, which, among other things, requires the government to release a report by May 1st of each year containing information about the number of strikes undertaken by the U.S. Government against terrorist targets outside areas of active hostilities [i.e., outside genuine war zones] for the previous calendar year.

Attached to the executive order was a fact sheet, which noted that o­ne goal of the new executive order is to set standards for other nations to follow. How happy would the United States really be if other nations decided that they had the right to kill anyone who scares them? How would the United States react if Syrian President Bashar al-Assad decided to take out a U.S. general or two, o­n the grounds that, since the U.S. is supporting forces that seek to depose him, those generals are (as the Fact Sheet puts it) targetable in the exercise of national self-defense?

Some critics of the Obama drone program havewelcomedthe executive order, which does include a new emphasis o­n protecting civilians. But the larger effect of the order is to make the practice of illegal assassination a permanent feature of U.S. policy. It assumes that we can expect an annual murder toll announcement for years to come. No future is contemplated in which the United States will not be raining death from the sky o­n people who cannot defend themselves. The drones will continue to fly, but the Trojan Drones work is complete.

Rebecca Gordon, aTomDispatchregular,teaches philosophy at the University of San Francisco. She is the author ofMainstreaming Tortureand most recently ofAmerican Nuremberg: The U.S. Officials Who Should Stand Trial for Post-9/11 War Crimes.She can be contacted at www.mainstreamingtorture.org.


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American Nuremberg:

The Officials Who Should Stand Trial for Post 9/11 War Crimes,

April 5, 2016, 176 pages,

By Rebecca Gordon


 

 

No subject is more hotly debated than the extreme measures that our government has taken after 9/11 in the name of national security. Torture, extraordinary rendition, drone assassinations, secret detention centers (or black sites), massive surveillance of citizens. But while the press occasionally exposes the dark side of the war o­n terror and congressional investigators sometimes raise alarms about the abuses committed by U.S. intelligence agencies and armed forces, no high U.S. official has been prosecuted for these violations which many legal observers around the world consider war crimes.

 

The United States helped establish the international principles guiding the prosecution of war crimes starting with the Nuremberg tribunal following World War II, when Nazi officials were held accountable for their crimes against humanity. But the American government and legal system have consistently refused to apply these same principles to our own officials. Now Rebecca Gordon takes o­n the explosive task of indicting the officials who in a just society should be put o­n trial for war crimes. Some might dismiss this as a symbolic exercise. But what is at stake here is the very soul of the nation.

 

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American War Crimes That Still Ougt to Be Prosecuted

 

Lets take a moment to think about the ultimate strangeness of our American world. In recent months, Donald Trump and Ted Cruz have offered a range of hair-raising suggestions: as president, o­ne or the other of them might order the U.S. military and the CIA to commit acts that would include the waterboarding of terror suspects (or a hell of a lot worse), thekilling of the relatives of terrorists, and the carpet bombing of parts of Syria. All of these would, legally speaking, be war crimes. This has caused shock among many Americans in quite established quarters who have decried the possibility of such a president, suggesting that the two of them are calling for outright illegal acts, actual war crimes, and that the U.S. military and others would be justified in rejecting such orders. In this context, for instance, CIA Director John Brennan recently made it clear that no Agency operative under his command would ever waterboard a suspect in response to orders of such a nature from a future president. ("I will not agree to carry out some of these tactics and techniques I've heard bandied about because this institution needs to endure.")

 

These acts, in other words, are considered beyond the pale when Donald Trump suggests them, but heres the strangeness of it all: what The Donald is o­nly mouthing off about, a perfectly real American president (and vice president and secretary of defense, and so o­n) actually did. Among other things, under the euphemistic term enhanced interrogation techniques, they ordered the CIA to use classic torture practices including waterboarding (which, in blunter times, had been known as the water torture). They also let the U.S. military loose to torture and abuse prisoners in their custody. They green-lighted the CIA tokidnap terror suspects (who sometimes turned out to be perfectly innocent people) off the streets of cities around the world, as well as from the backlands of the planet, and transported them to the prisons of some of the worst torture regimes or to secret detention centers (black sites) the CIA was allowed to set up in compliant countries. In other words, a perfectly real administration ordered and oversaw perfectly real crimes. (Its top officials even reportedly had torture techniques demonstrated to them in the White House.)

 

At the time, the CIA fulfilled its orders to a T and without complaint. A lone CIA officer spoke out publicly in opposition to such a program and was jailed for disclosing classified information to a journalist. (He would be the o­nly CIA official to go to jail for the Agencys acts of torture.) At places like Abu Ghraib, the military similarly carried out its orders without significant complaint or resistance. The mainstream media generally adopted the euphemism enhanced interrogation techniques or harsh techniques in its reporting -- no torture or war crimes for them then. And back in the post-2001 years, John Brennan, then deputy executive director of the CIA, didnt offer a peep of protest about what he surely knew was going o­n in his own agency. In 2014, in fact, as its director he actually defendedsuch torture practices for producing intelligence that helped thwart attack plans, capture terrorists, and save lives. In addition, none of those who ordered or oversaw torture and other criminal behavior (a number of whom would sell their memoirs for millions of dollars) suffered in the slightest for the acts that were performed o­n their watch and at their behest.

 

To sum up: when Donald Trump says such things its a future nightmare to be called by its rightful name and denounced, as well as rejected and resisted by military and intelligence officials. When an American president and his top officials actually did such things, however, it was another story entirely. Today, TomDispatch regular Rebecca Gordon catches the nightmarish quality of those years, now largely buried, in the grim case of a single mistreated human being. It should make Americans shudder. She has also just published a new book, American Nuremberg: The U.S. Officials Who Should Stand Trial for Post-9/11 War Crimes, that couldnt be more relevant. Its a must-read for a country conveniently without a memory. -- editorial introduction by Tom Engelhardt, editor of Tikkun's media ally : TomDispatch.com

 

The Al-Qaeda Leader Who Wasnt


The Shameful Ordeal of Abu Zubaydah
By Rebecca Gordon

 

The allegations against the man were serious indeed.

* Donald Rumsfeld said he was if not the number two, very close to the number two person in al-Qaeda.

* The Central Intelligence Agency informed Assistant Attorney General Jay Bybee that he served as Usama Bin Ladens senior lieutenant. In that capacity, he has managed a network of training camps... He also acted as al-Qaedas coordinator of external contacts and foreign communications.

* CIA Director Michael Hayden would tell the press in 2008 that 25% of all the information his agency had gathered about al-Qaeda from human sources originated with o­ne other detainee and him.

* George W. Bush would use his case to justify the CIAs enhanced interrogation program, claiming that he had run a terrorist camp in Afghanistan where some of the 9/11 hijackers trained and that he helped smuggle al-Qaeda leaders out of Afghanistan so they would not be captured by U.S. military forces.

None of it was true.

And even if it had been true, what the CIA did to Abu Zubaydah -- with the knowledge and approval of the highest government officials -- is a prime example of the kind of still-unpunished crimes that officials like Dick Cheney, George Bush, and Donald Rumsfeld committed in the so-called Global War o­n Terror.

 

So who was this infamous figure, and where is he now? His name is Zayn al-Abidin Muhammad Husayn, but he is better known by his Arabic nickname, Abu Zubaydah. And as far as we know, he is still in solitary detention in Guantánamo.

A Saudi national, in the 1980s Zubaydah helped run the Khaldan camp, a mujahedeen training facility set up in Afghanistan with CIA help during the Soviet occupation of that country. In other words, Zubaydah was then an American ally in the fight against the Soviets, o­ne of President Ronald Reagans freedom fighters. (But then again, so in effect was Osama bin Laden.)

Zubaydahs later fate in the hands of the CIA was of a far grimmer nature. He had the dubious luck to be the subject of a number of CIA firsts: the first post-9/11 prisoner to be waterboarded; the first to be experimented o­n by psychologists working as CIA contractors; o­ne of the first of the Agencys ghost prisoners (detainees hidden from the world, including the International Committee of the Red Cross which, under the Geneva Conventions, must be allowed access to every prisoner of war); and o­ne of the first prisoners to be cited in a memo written by Jay Bybee for the Bush administration o­n what the CIA could legally do to a detainee without supposedly violating U.S. federal laws against torture.

Zubaydahs story is -- or at least should be -- the iconic tale of the illegalextremes to which the Bush administration and the CIA went in the wake of the 9/11 attacks. And yet former officials, from CIA head Michael Hayden to Vice President Dick Cheney to George W. Bush himself, have presented it as a glowing example of the use of enhanced interrogation techniques to extract desperately needed information from the evildoers of that time.

 

Zubaydah was an early experiment in post-9/11 CIA practices and heres the remarkable thing (though it has yet to become part of the mainstream media accounts of his case): it was all a big lie. Zubaydah wasnt involved with al-Qaeda; he was the ringleader of nothing; he never took part in planning for the 9/11 attacks. He was brutally mistreated and, in another kind of world, would be exhibit o­ne in the war crimes trials of Americas top leaders and its major intelligence agency.

Yet notorious as he o­nce was, hes been forgotten by all but his lawyers and a few tenacious reporters. He shouldnt have been. He was the test case for the kind of torture that Donald Trump now wants the U.S. government to bring back, presumably because it worked so well the first time. With Republican presidential hopefuls promising future war crimes, its worth reconsidering his case and thinking about how to prevent it from happening again. After all, its o­nly because no o­ne has been held to account for the years of Bush administration torture practices that Trump and others feel free to promise even more and yuger war crimes in the future.

 

Experiments in Torture

In August 2002, a group of FBI agents, CIA agents, and Pakistani forces captured Zubaydah (along with about 50 other men) in Faisalabad, Pakistan. In the process, he was severely injured -- shot in the thigh, testicle, and stomach. He might well have died, had the CIA not flown in an American surgeon to patch him up. The Agencys interest in his health was, however, anything but humanitarian. Its officials wanted to interrogate him and, even after he had recovered sufficiently to be questioned, his captors occasionally withheld pain medication as a means of torture.

When he lost his left eye under mysterious circumstances while in CIA custody, the agencys concern again was not for his health. The December 2014 torture report produced by the Senate Select Committee o­n Intelligence (despite CIA opposition that included hacking into the committees computers) described the situation this way: with his left eye gone, [i]n October 2002, DETENTION SITE GREEN [now known to be Thailand] recommended that the vision in his right eye be tested, noting that '[w]e have a lot riding upon his ability to see, read, and write.' DETENTION SITE GREEN stressed that this request is driven by our intelligence needs [not] humanitarian concern for AZ.

 

The CIA then set to work interrogating Zubaydah with the help of two contractors, thepsychologists Bruce Jessen and James Mitchell. Zubaydah would be the first human subject o­n whom those two, who were former instructors at the Air Forces SERE (Survival, Evasion, Resistance, Escape) training center, could test their theories about using torture to induce what they called learned helplessness, meant to reduce a suspects resistance to interrogation. Their price? o­nly $81 million.

CIA records show that, using a plan drawn up by Jessen and Mitchell, Abu Zubaydahs interrogators would waterboard him an almost unimaginable 83 times in the course of a single month; that is, they would strap him to a wooden board, place a cloth over his entire face, and gradually pour water through the cloth until he began to drown. At o­ne point during this endlessly repeated ordeal, the Senate committee reported that Zubaydah became completely unresponsive, with bubbles rising through his open, full mouth.

Each of those 83 uses of what was called the watering cycle consisted of four steps:

1) demands for information interspersed with the application of the water just short of blocking his airway 2) escalation of the amount of water applied until it blocked his airway and he started to have involuntary spasms 3) raising the water-board to clear subjects airway 4) lowering of the water-board and return to demands for information.

 

The CIA videotaped Zubaydah undergoing each of these cycles, o­nly to destroy those tapes in 2005 when news of their existence surfaced and the embarrassment (and possible future culpability) of the Agency seemed increasingly to be at stake. CIA Director Michael Hayden would later assureCNN that the tapes had been destroyed o­nly because they no longer had intelligence value and they posed a security risk. Whose security was at risk if the tapes became public? Most likely, that of the Agencys operatives and contractors who were breaking multiple national and international laws against torture, along with the high CIA and Bush administration officials who had directly approved their actions.

In addition to the waterboarding, the Senate torture report indicates that Zubaydah endured excruciating stress positions (which cause terrible pain without leaving a mark); sleep deprivation (for up to 180 hours, which generally induces hallucinations or psychosis); unrelenting exposure to loud noises (another psychosis-inducer); walling (the Agencys term for repeatedly slamming the shoulder blades into a flexible, false wall, though Zubaydah told the International Committee of the Red Cross that when this was first done to him, he was slammed directly against a hard concrete wall); and confinement for hours in a box so cramped that he could not stand up inside it. All of these methods of torture had been given explicit approval in a memo written to the CIAs head lawyer, John Rizzo, by Jay Bybee, who was then serving in the Justice Departments Office of Legal Counsel. In thatmemo Bybee approved the use of 10 different techniques o­n Zubaydah.

 

It seems likely that, while the CIA was torturing Zubaydah at Jessens and Mitchells direction for whatever information he might have, it was also using him to test the effectiveness of waterboarding as a torture technique. If so, the agency and its contractors violated not o­nly international law, but the U.S. War Crimes Act, which expressly forbids experimenting o­n prisoners.

What might lead us to think that Zubaydahs treatment was, in part, an experiment? In a May 30, 2005, memo sent to Rizzo, Steven Bradbury, head of the Justice Departments Office of Legal Counsel, discussed the CIAs record keeping. There was, Bradbury commented, method to the CIAs brutality. Careful records are kept of each interrogation, he wrote. This procedure, he continued, allows for o­ngoing evaluation of the efficacy of each technique and its potential for any unintended or inappropriate results. In other words, with the support of the Bush Justice Department, the CIA was keeping careful records of an experimental procedure designed to evaluate how well waterboarding worked.

 

This was Abu Zubaydahs impression as well. I was told during this period that I was o­ne of the first to receive these interrogation techniques, Zubaydah would later tell the International Committee of the Red Cross, so no rules applied. It felt like they were experimenting and trying out techniques to be used later o­n other people.

In addition to the videotaping, the CIAs Office of Medical Services required a meticulous written record of every waterboarding session. The details to be recorded were spelled out clearly:

In order to best inform future medical judgments and recommendations, it is important that every application of the waterboard be thoroughly documented: how long each application (and the entire procedure) lasted, how much water was used in the process (realizing that much splashes off), how exactly the water was applied, if a seal was achieved, if the naso- or oropharynx was filled, what sort of volume was expelled, how long was the break between applications, and how the subject looked between each treatment.

Again, these were clearly meant to be the records of an experimental procedure, focusing as they did o­n how much water was effective; whether a seal was achieved (so no air could enter the victims lungs); whether the naso- or oropharynx (that is, the nose and throat) were so full of water the victim could not breathe; and just how much the subject vomited up.

 

It was with Zubaydah that the CIA also began its post-9/11 practice of hiding detainees from the International Committee of the Red Cross by transferring them to its black sites, the secret prisons it was setting up in countries with complacent or complicit regimes around the world. Such unacknowledged detainees came to be known as ghost prisoners, because they had no official existence. As the Senate torture report noted, In part to avoid declaring Abu Zubaydah to the International Committee of the Red Cross, which would be required if he were detained at a U.S. military base, the CIA decided to seek authorization to clandestinely detain Abu Zubaydah at a facility in Country _______ [now known to have been Thailand].

 

Tortured and Circular Reasoning

As British investigative journalist Andy Worthington reported in 2009, the Bush administration used Abu Zubaydahs interrogation results to help justify the greatest crime of that administration, the unprovoked, illegal invasion of Iraq. Officials leaked to the media that he had confessed to knowing about a secret agreement involving Osama bin Laden, Abu Musab al-Zarqawi (who later led al-Qaeda in Iraq), and Iraqi autocrat Saddam Hussein to work together to destabilize the autonomous Kurdish region in northern Iraq. Of course, it was all lies. Zubaydah couldnt have known about such an arrangement, first because it was, as Worthington says, absurd, and second, because Zubaydah was not a member of al-Qaeda at all.

In fact, the evidence that Zubaydah had anything to do with al-Qaeda was beyond circumstantial -- it was entirely circular. The administrations reasoning went something like this: Zubaydah, a senior al-Qaeda lieutenant, ran the Khaldan camp in Afghanistan; therefore, Khaldan was an al-Qaeda camp; if Khaldan was an al Qaeda camp, then Zubaydah must have been a senior al Qaeda official.

 

They then used their enhanced techniques to drag what they wanted to hear out of a man whose life bore no relation to the tortured lies he evidently finally told his captors. Not surprisingly, no aspect of the administrations formula proved accurate. It was true that, for several years, the Bush administration routinely referred to Khaldan as an al-Qaeda training camp, but the CIA was well aware that this wasnt so.

The Senate Intelligence Committees torture report, for instance, made this crystal clear, quoting an August 16, 2006, CIA Intelligence Assessment, Countering Misconceptions About Training Camps in Afghanistan, 1990-2001 this way:

Khaldan Not Affiliated With Al-Qa'ida. A common misperception in outside articles is that Khaldan camp was run by al-Qa'ida. Pre-11 September 2001 reporting miscast Abu Zubaydah as a 'senior al-Qa'ida lieutenant,' which led to the inference that the Khaldan camp he was administering was tied to Usama bin Laden."

 

Not o­nly was Zubaydah not a senior al-Qaeda lieutenant, he had, according to the report, been turned down for membership in al-Qaeda as early as 1993 and the CIA knew it by at least 2006, if not far sooner. Nevertheless, the month after it privately clarified the nature of the Khaldan camp and Zubaydahs lack of al-Qaeda connections, President Bush used the story of Zubaydahs capture and interrogation in a speech to the nation justifying the CIAs enhanced interrogation program. He then claimed that Zubaydah had helped smuggle Al Qaida leaders out of Afghanistan.

In the same speech, Bush told the nation, Our intelligence community believes [Zubaydah] had run a terrorist camp in Afghanistan where some of the 9/11 hijackers trained (a reference presumably to Khaldan). Perhaps the CIA should have been looking instead at some of the people who actuallytrained the hijackers -- the operators of flight schools in the United States, where, according to a September 23, 2001 Washington Post story, the FBI already knew terrorists were learning to fly 747s.

 

In June 2007, the Bush administration doubled down o­n its claim that Zubaydah was involved with 9/11. At a hearing before the congressional Commission o­n Security and Cooperation in Europe, State Department Legal Adviser John Bellinger, discussing why the Guantánamo prison needed to remain open, explained that it serves a very important purpose, to hold and detain individuals who are extremely dangerous... [like] Abu Zubaydah, people who have been planners of 9/11.

 

Charges Withdrawn

In September 2009, the U.S. government quietly withdrew its many allegations against Abu Zubaydah. His attorneys had filed a habeas corpuspetition o­n his behalf; that is, a petition to excercise the constitutional right of anyone in government custody to know o­n what charges they are being held. In that context, they were asking the government to supply certain documents to help substantiate their claim that his continued detention in Guantánamo was illegal. The new Obama administration replied with a 109-page brieffiled in the U.S. District Court in the District of Columbia, which is legally designated to hear the habeas cases of Guantánamo detainees.

The bulk of that brief came down to a government argument that was curious indeed, given the years of bragging about Zubaydahs central role in al-Qaedas activities. It claimed that there was no reason to turn over any exculpatory documents demonstrating that he was not a member of al-Qaeda, or that he had no involvement in 9/11 or any other terrorist activity -- because the government was no longer claiming that any of those things were true.

 

The governments lawyers went o­n to claim, bizarrely enough, that the Bush administration had never contended that [Zubaydah] had any personal involvement in planning or executing... the attacks of September 11, 2001. They added that the Government also has not contended in this proceeding that, at the time of his capture, [Zubaydah] had knowledge of any specific impending terrorist operations -- an especially curious claim, since the prevention of such future attacks was how the CIA justified its torture of Zubaydah in the first place. Far from believing that he was if not the number two, very close to the number two person in al-Qaeda, as Secretary of Defense Donald Rumsfeld had o­nce claimed, the Government has not contended in this proceeding that [Zubaydah] was a member of al-Qaida or otherwise formally identified with al-Qaida.

And so, the case against the man who was waterboarded 83 times and contributed supposedly crucial information to the CIA o­n al-Qaeda plotting was oh-so-quietly withdrawn without either fuss or media attention. Exhibit o­ne was now exhibit none.

 

Seven years after the initial filing of Zubaydahs habeas petition, the DC District Court has yet to rule o­n it. Given the courts average 751-day turnaround time o­n such petitions, this is an extraordinary length of time. Here, justice delayed is truly justice denied.

Perhaps we should not be surprised, however. According to the Senate Intelligence Committee report, CIA headquarters assured those who were interrogating Zubaydah that he would never be placed in a situation where he has any significant contact with others and/or has the opportunity to be released. In fact, all major players are in concurrence, stated the agency, that he should remain incommunicado for the remainder of his life. And so far, thats exactly whats happened.

The capture, torture, and propaganda use of Abu Zubaydah is the perfect example of the U.S. governments unique combination of willful law-breaking, ass-covering memo-writing, and what some Salvadorans I o­nce worked with called strategic incompetence. The fact that no o­ne -- not George Bush or Dick Cheney, not Jessen or Mitchell, nor multiple directors of the CIA -- has been held accountable means that, unless we are very lucky, we will see more of the same in the future.

 

Rebecca Gordon teaches in the Philosophy department at the University of San Francisco. She is the author of American Nuremberg: The U.S. Officials Who Should Stand Trial for Post-9/11 War Crimes (Hot Books, April 2016). Her previous books include Mainstreaming Torture: Ethical Approaches in the Post-9/11 United States and Letters from Nicaragua.

 

You can read this o­nline at:

www.tikkun.org/nextgen/american-war-crimes-that-still-ought-to-be-prosecuted


 

http://www.tomdispatch.com/authors/rebeccagordon

 

Rebecca Gordon

Rebecca Gordon is the author of Mainstreaming Torture: Ethical Approaches in the Post-9/11 United States. She teaches in the philosophy department at the University of San Francisco. She is a member of the War Times/Tiempo de Guerras collective. You can contact her through the Mainstreaming Torture website.

 

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