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COMMENTARY | April 29, 2009

We still don't know the answer to some of the most basic questions about Bush's detainee legacy, writes the founder of the National Religious Campaign Against Torture. Who were the prisoners? Who were the torturers? And who authorized the program? Fourth in a series of articles calling attention to the things we still need to know about torture and other abuses committed by the Bush administration after 9/11.

By George Hunsinger

We need a non-partisan (as opposed to "bi-partisan") investigation. We need a full-scale, impartial investigation, not damage control and a cover up. And here are some of the questions such an investigation should get the answer to.

1. Who authorized the torture program? When? Were the first Justice Department Office of Legal Counsel opinions authorizing it actually written after the fact? So it seems. Consider, for example, that Abu Zubaydah was captured in late March 2002, while John Yoo’s “Torture Memo” was not signed by Jay Bybee until four months later -- on August 1. Reporting by ABC News suggests that the National Security Council (NSC) Principals Committee was presiding over the torture in advance of the memo.

The groundwork for the torture program seems to have been laid well prior even to Zubaydah’s capture and interrogation. For example, George W. Bush signed a "Decision Memorandum" on February 7, 2002 in which torture was effectively permitted by suspending Article 3 of the Geneva Conventions for a class of terrorist suspects.

But a complete timeline of the official documents authorizing torture needs to be established.

What did high-ranking officials know and when did they know it? Once the torture program was in operation, what was the flow of information and decision-making about how it was going? Did information and decisions go all the way up to the Oval Office – or the vice president’s office -- and back down again?

2. Who were the prisoners? Col. Lawrence Wilkerson, former chief of staff in the State Department under Colin Powell, has claimed that "no meaningful attempt" was made to vet the detainees. He added that "the U.S. leadership became aware of this lack of proper vetting very early on and, thus, of the reality that many of the detainees were innocent of any substantial wrongdoing, had little intelligence value, and should be immediately released." Similar statements have been made by Major General Michael Dunlavey, at one time the top military commander at Guantanamo, and other high-ranking officials. So who were the people who got caught up in the detention dragnet?

The U.S. military reported in 2008 that 2,500 youths under the age of 18 had been detained, almost all in Iraq, for periods up to a year since 2002. Was their treatment in accord with the Geneva Conventions and the Convention on the Rights of a Child? Were any of them subject to treatment rising to the level of cruel, inhuman and degrading treatment, or torture? How many and why?

The U.S. Central Command (Lt. Col. Rumi Nielson-Green) has confirmed that from 2003-2005 there was a Pakistani woman held prisoner at Bagram, designated as Prisoner 650. Allegations exist that there have been over 100 female detainees held and interrogated. How many female detainees were interrogated by U.S. agents or soldiers? Were any women held at black sites? Was this prisoner, or any other female prisoner, subject to "enhanced interrogation"? Cruel, inhuman and degrading treatment? Torture? Was rape ever documented during interrogation, authorized or not? How many female detainees were killed in detention (many are listed as having "died")? What exactly was done to women and children by U.S. interrogators at Abu Ghraib?

At one point there were believed to be more than 100 prisoners at black sites. By the time President Bush announced that the high-value detainees were being moved to Guantanamo, there were believed to be 34. Fourteen were moved to Guantanamo. What happened to the rest? Did any of them die?

3. What has happened to the on-site torturers employed by the U.S.? From past experience it is known that many become an ongoing threat to society, and that, among other things, they all need as much healing as the victims. As Darius Rejali has written in his monumental Torture and Democracy (Princeton University Press, 2007): Research shows that "torture traumatizes perpetrators 'by inducing toxic levels of guilt and shame.' Why some have these feelings and others not is unclear." According to researchers Fred Grunfeld and Alette Smeulers, "Some continue to deny or minimize their roles. Others feel guilt, shame, remorse, some suffer nightmares, depressions or post traumatic stress disorder. Others can't live with the reality of what they have done." Some will find new avenues to continue in their ways. Others will commit suicide.

How many personnel implicated in the torture program still hold positions, sometimes in very high places, in the government? What does their presence say about our ability to flush torture out of our system?

4. What use has been made of the information taken in torture? There are three plots, or rather alleged plots, known to have been divulged through torture: Saddam Hussein and al Qaeda collaborating on chemical and biological weapons (Ibn al Shaykh al Libi), the dirty bomb plot (Abu Zubaydah), and the nuclear power plant plot (Khalid Sheikh Mohammed). There is a war going on based on this information, there are prisoners at Guantanamo (formerly at black sites) based on this information, there is at least one prisoner (Uzair Paracha) whose conviction and sentencing was influenced by this information. Jose Padilla was arrested based on largely false claims made during the Abu Zubaydah tortures; he was eventually sentenced to 17 years on relatively minor charges. Uzair Paracha got 30 years.

It is illegal to use information derived from torture in a judicial proceeding. On what authority was it used? How many prisoners have been detained or convicted based on information derived from torture by the U.S. or any collaborating government? The use of such information could be very damaging, and possibly implicate a wider circle, including U.S. Attorneys and their staffs, on contempt of court and violations of international law. Instead of just some CIA personnel going down, and the persistent threat of White House officials facing prosecution, many others, including FBI agents and DOJ officials, could be added to the list.

5. What are the loopholes that need to be closed so that we can never again resort to torture? The history of U.S. involvement in torture is the history of loopholes. How do we rid our system of the torture bacillus lurking in the shadows of our permanent government? How do we get rid of the loopholes inserted into the Army Field Manual (especially Appendix M) and in the Military Commissions Act?

What are the funding lines, overt and hidden, in the national budget that continue to make torture possible? How can we cut them off?

6. What example have we set? Have we allowed torture regimes all over the world to legitimate themselves by our example? Consider Thailand. According to journalist Shawn W. Crispin, "Rights advocates monitoring southern Thailand's conflict note a striking similarity between the torture techniques U.S. agents are known to have used … with those now in practice by Thai security forces against suspected Thai Muslim militants." An increasing number of brutal regimes, including China, have defended their use of torture by citing the U.S. example. During her recent visit to that country, Secretary of State Hillary Clinton was criticized for moving human rights to the back burner. How could she credibly do anything else as long as we are running brutal prisons like Guantanamo and Bagram and covering up the extent of the Bush torture program?

7. What compensation should be provided to the torture victims? It seems clear that many of them were guilty of no crime. For example, one innocent victim of extraordinary rendition, Maher Arar -- who isn't allowed into this country -- received an apology and millions of dollars from Canada, where he holds citizenship. Wrongly suspected of terrorist activities, he was abducted by the U.S. from JFK airport, denied meaningful access to a lawyer, and sent to Syria, where he was tortured for nearly a year. Isn't an official apology and significant monetary compensation the least that can be done for all who were tortured, especially those known to be innocent, and who will suffer unspeakable trauma for the rest of their lives? Monetary compensation, apologies, explanations of why they were tortured, and details of what was done—all these allow the voices of the victims to be heard and provide hope for treatment and rehabilitation.

For assistance at various points, I am grateful to Marjorie Cohen, Ray McGovern, and Stephen Soldz. Special thanks are due to ondelette, who contributed generously to the preparation of this essay. He writes for the weblog, Humanity Against Crimes.

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