This is clearly no time for being mealy-mouthed. After nearly seven years of ruinous warmongering, economic meltdown, and the shredding of the U.S. Constitution, the Bill of Rights, the Geneva Conventions, and the UN Convention Against Torture, Sen. John McCain, who recently shelved his lifelong opposition to torture by voting against a bill banning the use of torture by the CIA, cemented his adherence to the bellicose policies of the Bush administration by declaring that last Thursday’s Supreme Court ruling, granting constitutional habeas corpus rights to the prisoners at Guantánamo, was "one of the worst decisions in the history of this country."
As conservative columnist George F. Will asked, pertinently, in a Washington Post column on Tuesday, "Does it rank with Dred Scott v. Sanford (1857), which concocted a constitutional right, unmentioned in the document, to own slaves and held that black people have no rights that white people are bound to respect? With Plessy v. Ferguson (1896), which affirmed the constitutionality of legally enforced racial segregation? With Korematsu v. United States (1944), which affirmed the wartime right to sweep American citizens of Japanese ancestry into concentration camps?"
Beyond McCain’s stunted historical memory, his outburst, which is clearly intended to portray Barack Obama as anything other than the rock-hard soldier stallion that McCain is in his imagination, flies in the face of the ever-growing evidence that the entire "War on Terror" imprisonment program has been both chronically brutal and irredeemably flawed, and that Barack Obama is correct to call the ruling "an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus."
On ABC News on Monday, Obama explained more, saying, "Let’s take the example of Guantánamo. What we know is that in previous terrorist attacks, for example, the first attack against the World Trade Center, we were able to arrest those responsible, put them on trial. They are currently in U.S. prisons, incapacitated. And the fact that the administration has not tried to do that has created a situation where not only have we never actually put many of these folks on trial, but we have destroyed our credibility when it comes to rule of law all around the world."
When McCain’s team followed up by accusing Obama of having "a September 10th mindset," the response was both swift and accurate. Obama declared that it was clear that, while McCain was "going to use the Bush-Cheney political playbook that’s based on fear," he believes that he is "very clear about the threats America faces and I think, in fact, it’s the failed policies of the Bush administration and the unwillingness to look toward the future that is causing us so many problems around the world."
On Sunday, in the first story to throw serious doubt on John McCain’s rhetoric, McClatchy Newspapers published the results of an eight-month investigation into the stories of 66 of the 501 prisoners released from Guantánamo, which demonstrated why the Supreme Court was correct to intervene in the cases of the prisoners. In an article introducing the profiles, lead researcher Tom Lasseter wrote that "the dozens of separate tales merge into one: Arrests often without real evidence brutality and mistreatment in U.S. interrogations, years of their lives spent behind prison-camp wire in a system of justice that no American citizen would recognize."
This was almost an understatement, as even the McClatchy report does not make entirely clear that the Guantánamo prisoners required the Supreme Court’s constitutional assistance because, in sidestepping the Geneva Conventions’ battlefield tribunals, which traditionally sort out soldiers from those wrongly detained, and in pressing ahead with alternative tribunals at Guantánamo that relied on generalized and generic unclassified evidence, and classified evidence, withheld from the prisoners, that was often obtained through torture or coercion, the prisoners at Guantánamo have never been screened adequately to determine if they actually do constitute a threat to the United States.
Further proof of the administration’s descent into barbarism came on Tuesday, when it was revealed that an investigation by the Senate Committee on Armed Services into "The Origins of Aggressive Interrogation Techniques" has discovered that senior Pentagon officials began planning to use abusive tactics at Guantánamo Bay in July 2002, three months earlier than has been previously acknowledged. The plan involved borrowing tactics from the military training program known as Survival Evasion Resistance Escape (SERE), whose aim is to teach U.S. soldiers counter-interrogation techniques by subjecting them, in controlled circumstances, to torture techniques including waterboarding (controlled drowning), sleep deprivation, forced nudity, sexual and religious humiliation, and forced standing in painful "stress positions."
Speaking as the story broke, Sen. Carl Levin, the committee’s chairman, said, "How did it come about that American military personnel stripped detainees naked, put them in stress positions, used dogs to scare them, put leashes around their necks to humiliate them, hooded them, deprived them of sleep, and blasted music at them? Were these actions the result of ‘a few bad apples’ acting on their own? It would be a lot easier to accept if it were. But that’s not the case. The truth is that senior officials in the United States government sought information on aggressive techniques, twisted the law to create the appearance of their legality, and authorized their use against detainees. In the process, they damaged our ability to collect intelligence that could save lives." He added, "Some might say that if our personnel go through it in SERE school, what’s wrong with doing it to detainees? Well, our personnel are students and they can call off the training at any time. If we use those same techniques offensively against detainees, it says to the world that they have America’s stamp of approval."
During eight hours of hearings on Tuesday, William J. Haynes II, the former general counsel for the Department of Defense, who was singled out by the committee for investigating the use of SERE techniques in summer 2002, acknowledged that he had pressed for the use of more aggressive techniques, but claimed that the decisions were driven by the administration’s fear of another major terrorist strike. "What I remember about the summer of 2002," Haynes said, "was a government-wide concern about the possibility of another terrorist attack as the anniversary of September 11" approached. While this was undoubtedly true, Haynes and other senior officials (including President Bush, Vice President Cheney, and then-Defense Secretary Donald Rumsfeld) ignored the many voices of others, trained in the use of interrogation, who pointed out that, as well as being morally repugnant, torture was not the way to secure worthwhile confessions.
At the forefront of these complaints, as I have repeatedly pointed out, was the FBI. A recent Department of Justice report [.pdf] highlighted the FBI’s opposition to the use of "enhanced interrogation techniques," and retired senior interrogator Dan Coleman, who worked on several high-profile terrorism cases before the 9/11 attacks without using torture, is on record as stating that "people don’t do anything unless they’re rewarded." In an interview with the New Yorker‘s Jane Mayer, he acknowledged that brutality "all that alpha-male sh*t" may "yield a timely scrap of information" but is "completely insufficient" in the longer fight against terrorism. "You need to talk to people for weeks. Years," he explained. His colleague, Jack Cloonan, had another take on the self-defeating nature of brutality, telling Mayer that it would cut off "the possibility that other people with useful information about al-Qaeda [would] consider becoming informants." As he explained, "You think all of this stuff about torture is going to make people want to come to us? That’s why I get upset when I hear people talking about stress positions, loud music, and dogs."
With even less success, Haynes cited "widespread frustration" among Pentagon officials in the summer of 2002 about the slow progress of obtaining information from prisoners in Guantánamo, ignoring the fact that this was the period when CIA officials were first concluding that this lack of "actionable intelligence" was unconnected with the prisoners’ supposed resistance to questioning, which was purportedly part of al-Qaeda training, and was, in fact, because the majority of the prisoners had no intelligence to withhold.
In August 2002, the Los Angeles Times reported that a senior intelligence official who had spent time at the prison said that "U.S. authorities had netted ‘no big fish’ there," and that "Some of these guys literally don’t know the world is round," and in September 2002, a top-secret CIA study reported in a New York Times article in June 2004, "raised questions about [the prisoners’] significance, suggesting that many of the accused terrorists appeared to be low-level recruits who went to Afghanistan to support the Taliban or even innocent men swept up in the chaos of the war," according to "current and former officials who read the assessment." Or, as Lt. Col. Thomas S. Berg, a member of the first military legal team established to work on proposed prosecutions for prisoners at Guantánamo, told the New York Times in October 2004, "It became obvious to us as we reviewed the evidence that, in many cases, we had simply gotten the slowest guys on the battlefield. We literally found guys who had been shot in the butt."
Reports on the hearings have focused on the widespread opposition to the administration’s policies from other law enforcement agencies. The Washington Post reported that "Haynes and other Pentagon officials acknowledged that the proposed methods faced opposition at the time from experts in military and international law," and cited Mark Fallon, the deputy commander of the Defense Department’s Criminal Investigation Task Force, whose criticisms have been largely overlooked.
In an October 2002 e-mail to colleagues in the Pentagon, Fallon warned that the techniques under discussion would "shock the conscience of any legal body" that might review how the interrogations were conducted. "This looks like the kind of stuff congressional hearings are made of," he wrote, adding, "Someone needs to be considering how history will look back at this." In October 2006, when MSNBC ran a major feature on various agencies’ opposition to the administration’s tactics which included a profile of Fallon his boss, Col. Brittain P. Mallow, the commander of the task force from 2002 to 2005, also spoke out. "No. 1, it’s not going to work," Col. Mallow said. "No. 2, if it does work, it’s not reliable. No. 3, it may not be legal, ethical or moral. No. 4, it’s going to hurt you when you have to prosecute these guys. No. 5, sooner or later, all of this stuff is going to come to light, and you’re going to be embarrassed."
Even more significant than the CITF’s criticisms, however, was the opposition to the administration’s policies that was waged by Alberto J. Mora, the head of the Naval Criminal Investigative Service, which, like the CITF, was also involved in nonviolent intelligence gathering at Guantánamo. When Mora was informed about the Pentagon-sanctioned abuse that was taking place, he took his complaints to the highest levels, confronting both Donald Rumsfeld and William Haynes. His principled struggle which was ultimately unsuccessful was first reported in detail in another extraordinary New Yorker article by Jane Mayer in February 2006, and Mora also features heavily in the Academy Award-winning documentary Taxi to the Dark Side, and in my book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison.
On Tuesday, Alberto J. Mora appeared before the Senate committee, condemning [.pdf] the policies now apparently supported by John McCain with a clarity and indignation that should serve as a rallying cry to all decent Americans. Mora declared:
"[O]ur Nation’s policy decision to use so-called ‘harsh’ interrogation techniques during the War on Terror was a mistake of massive proportions. It damaged and continues to damage our Nation in ways that appear never to have been considered or imagined by its architects and supporters, whose policy focus seems to have been narrowly confined to the four corners of the interrogation room. This interrogation policy which may aptly be labeled a ‘policy of cruelty’ violated our founding values, our constitutional system and the fabric of our laws, our overarching foreign policy interests, and our national security. The net effect of this policy of cruelty has been to weaken our defenses, not to strengthen them, and has been greatly contrary to our national interest."
"The United States was founded on the principle that every person not just each citizen possesses certain inalienable rights that no government, including our own, may violate. Among these rights is unquestionably the right to be free from cruel punishment or treatment, as is evidenced in part by the clear language of the Eighth Amendment and the constitutional jurisprudence of the Fifth and Fourteenth Amendments. If we can apply the policy of cruelty to detainees, it is only because our Founders were wrong about the scope of inalienable rights. With the adoption of this policy our founding values necessarily begin to be redefined and our constitutional structure and the fabric of our legal system start to erode."
In conclusion, he added, "Albert Camus cautioned against nations fighting for their values against selecting those weapons whose very use would destroy those values. In this War on Terror, the United States is fighting for our values, and cruelty is such a weapon."
Are you listening, John McCain?