The Year in Torture

As 2010 winds to an end, it is time to reflect on the year in torture. Let’s review, shall we? January marked the end of Barack Obama’s first year in office; while the president may still be smoking cigarettes, he did keep his 2009 New Year’s “looking forward, not backward” resolution not to prosecute any US officials for the crime of torture. Unaccountability for all, and a happy new year! What about his promise (enshrined in a 2009 executive order) to end torture? Depending on how one looks at it, the cup ‘o torture is half-empty or half-full: by maintaining the classified Appendix M to the 2006-revised Army Field Manual, a loophole remains to employ protracted sleep deprivation and isolation, “stress positions” and “environmental manipulations.” What this means, in principle and in practice (in Afghanistan), is that “humane treatment” retains its post-9/11 status as a “privilege” rather than an inalienable “right.”

In February, US “torture lawyers” were the subject of two divergent (yet related) developments: In Spain, a case was being prepared to pursue prosecution of former government lawyers, the so-called “Gonzales 6,” in connection with their role in authorizing the torture and abuse of Spanish nationals at Guantanamo; meanwhile, in the US, they were exonerated when the Department of Justice released its very long-overdue Office of Professional Responsibility report, which concluded—in defiance of the evidence the report itself contains—that they had merely exercised “poor judgment.” The Obama administration, of course, opposed Spanish efforts to enforce the law. (In December, thanks to Wikileaked documents, the nature of that opposition became public.) The OPR report’s politicized conclusion was manna to torture enthusiasts who got one more reason to assert that waterboarding isn’t “torture”; as David Luban aptly concluded: “Goodbye poor judgment—hello legalization.”

If US courts are in need of a 2010 motto, “Just say no” should be a contender. In February, Judge Ellen Huvelle of the DC District Court dismissed a lawsuit for damages brought by the families of two (of three) Guantánamo detainees who died mysteriously in June 2006, which were labeled by the government as “suicides” by hanging. The circumstance of these simultaneous midnight deaths and the fact that their throats were removed before the bodies were returned to their homelands for burial would suggest that they might have been tortured to death. Case closed. In June, the Supreme Court ruled not to hear the civil suit by Maher Arar against former Attorney General John Ashcroft and other US officials responsible for his 2002 “extraordinary rendition” to torture in Syria. Case closed. And in September, the last civil suit in the pipeline was dismissed when the Ninth Circuit ruled (6-to-5) to dismiss the case by British resident Binyam Mohamed and four others against Jeppesen Dataplan, the company whose planes had been contracted to transport them to torture. Case closed.

Apparently, two judges didn’t get the “Just say no” memo. In March, Judge James Robertson of the DC District Court ordered the release of Guantanamo detainee Mohamedou Ould Slahi because the government’s evidence for holding him was derived from tortured statements—and therefore, the judge decided, was inadmissible. Slahi had been subjected to the “usual” treatment (sleep deprivation, extreme temperature and so on) as well as some special measures, such as taking him by boat off the coast and threatening to throw him overboard, and threatening to arrest his mother and make her the first female detainee at the prison. The Obama administration appealed the ruling, and Slahi remains in custody. In October, Judge Lewis Kaplan of the Southern District of New York, who presided over the trial of Ahmed Ghailani—the first Guantanamo detainee to be tried in federal court—excluded key evidence (a government witness) on the grounds that his identity had been obtained through torture. The following month, the jury acquitted Ghailani of 286 charges, and found him guilty of one. That outcome was clearly related to Judge Kaplan’s exclusion of tortured evidence, and such a law-abiding ruling became fodder for those who ardently oppose the prosecution of terror suspects in federal courts. (Whether these opponents prefer military commissions or indefinite detention without trial is another debate.)

During the April-May pretrial suppression hearings in the military commission case against Omar Khadr, torture was the main topic. The testimony included allegations (confirmed by some witnesses) that Khadr (who was 15 at the time he was captured in 2002) was beaten, threatened with rape and snarling dogs, hung by his wrists for hours which exacerbated the pain of his injuries, hooded and soaked with water until he began to suffocate, was subjected to protracted sleep deprivation under the “frequent flyer program,” and was doused with a pine-scented cleaner and used as a “human mop” on the floor where he urinated after being denied access to a toilet. The presiding military judge, Col. Patrick Parrish, ruled on August 9 that he found “no credible evidence” that Khadr had been abused or that his treatment constituted violations of (post-9/11) US law, and therefore all statements were admissible. Khadr agreed to a plea deal and was convicted in October.

This year ends in the midst of a steady drip of Wikileaked secret diplomatic cables. Among the revelations is information about US efforts to block criminal investigations of CIA torture by European allies Germany and Spain. The government scored a victory on December 14 when an administrative court in Cologne rejected a complaint filed on behalf of tortured German citizen Khaled el-Masri to force the government to pursue the case against 13 CIA agents. Those same agents, who kidnapped el-Masri in Macedonia, had transited through Spain where a case against them remains alive (or, should we say, undead), despite comparable diplomatic pressure.

Surely there is more 2010 torture to remember and contemplate than included in this short sampling. But, hey, there’s always next year!