With a heavy dose of fear and violence, and a lot of money for projects, I think we can convince these people that we are here to help them.
Colonel Nathan Sassaman1
“OUR” VIOLENCE …
Talal Asad, summarizing the elements of a just war, argues that such a conflict is one waged by people of good character, for benign motives, after all possible alternatives have been exhausted, and under the civilizing restraints of morality and law.2 For the American empire, all wars waged by its leaders are just wars, launched only in the face of overwhelming provocation, to achieve liberal and humane objectives. With this hollow self-justification in mind, can the “higher ground” posited by Asad ever exist?
Consider some of the acts that the empire has afforded itself in its recent, supposedly just, wars. From the WikiLeaks cables we have learned that the United States has bombed civilian targets; carried out raids in which children were handcuffed and shot in the head, then summoned an air strike to conceal the deed;3 gunned down civilians and journalists;4 deployed “black” units of special forces to carry out extrajudicial captures and killings;5 side-stepped an international ban on cluster bombs;6 strong-armed the Italian judiciary over the indictment of CIA agents involved in extraordinary rendition;7 engaged in an undeclared ground war in Pakistan;8 and tortured detainees at Guantánamo Bay, few of whom have ever been charged with any crime.9 This is but a sample of the grueling realities of America’s wars in the last decade or so—and yet, they would appear to represent a strong prima facie case that the United States knows no law, no morality, and no restraint in its pursuit of war.
Many commentators consider these actions to be war crimes.10 Indeed, some of the most informed international legal commentators have produced devastating indictments of what they say is the Bush administration’s reckless disregard for the law.11 However, in the cases where the US authorities have acknowledged these actions, they are justified as a response to terrorism. Terrorism, it is suggested, is the opposite of the just war, both describing an illegitimate form of political violence and providing a primary justification for war. It is not limited by restraint, morality, or law. And of course, as every right-thinking person knows by now, terrorists cannot be negotiated with.
But the WikiLeaks documents give us plenty of reason to doubt this rationale. For example, with regard to Guantánamo, we were told that those detained there were the worst of the worst—terrorists who posed a clear and present danger to the safety of Americans and others. The Guantánamo Files,12 however, show this not to be the case. Many prisoners were knowingly held despite posing no risk. A tiny proportion were ever charged, despite the obvious advantage that interrogators would have in eliciting a confession.
Often, “high value” detainees had little or no evidence against them. For example, Sami al-Hajj was referred to as being of “HIGH intelligence value” and also a “HIGH risk, as he is likely to pose a threat to the US, its interests, and allies.” This would seem to be precisely the sort of person the Bush administration had told us should be in Guantánamo. The detainee assessment, however, cited no positive evidence of its claims that he was “a member of al-Qaida and logistics expert with direct ties to al-Qaida … and the Taliban leadership.” Rather, in its description of the evidence under “recruitment” and “training and activities,” it describes his work as an Al Jazeera journalist and, prior to that, as an employee of a beverage company.
Nothing in the list of charges does more than raise an eyebrow. Further, the assessment makes it clear that at least part of the reason that al-Hajj was being detained was so that he could be grilled for information about Al Jazeera. Indeed, al-Hajj’s solicitor states that interrogators constantly attempted to make him say that there was a link between Al Jazeera and al-Qaeda. Eventually, Sami al-Hajj was released with no charges against him, after the Sudanese government assured the US that he was an ordinary citizen and posed no security threat. This, according to his solicitor,13 was not before he had been beaten and sexually assaulted.
Other WikiLeaks cables show either a reckless disregard for civilian life or the knowing perpetration of atrocities against civilians. For example, alongside investigative journalism inspired by WikiLeaks, the “FRAGO 242”14 protocol was discovered, in which the Pentagon ordered military personnel not to investigate claims of torture against Iraqi soldiers and paramilitaries. It was partly explained by the fact that the United States was training these forces in the use of torture. As we shall see, this was deployed in a ruthless civil war and counter-insurgency strategy in which civilians were terrorized, brutalized, and killed.
We still do not have access to the most incriminating records concerning the use of torture in Iraq by US troops. As the Abu Ghraib revelations were emerging, the journalist Seymour Hersh discovered that the Pentagon had a tape of a grotesque incident at the prison, in which “[t]he women were passing messages out saying ‘Please come and kill me, because of what’s happened.’” The women had been detained alongside a group of young boys. The boys had been sodomized, with the cameras rolling. There was also an audio track of the boys’ shrieking.15
The state leaders who waged this war seem unperturbed by any of these brutalities. Former vice president Dick Cheney, when quizzed about the Bush administration’s role in torture, said: “I have no problem as long as we achieve our objective. And our objective is to get the guys who did 9/11 and it is to avoid another attack against the United States.” When told of an example of a man who was chained to the wall of a cell, doused with cold water, and frozen to death, only for it to turn out that he was entirely innocent, Cheney was intransigent: “I’m more concerned with bad guys who got out and released than I am with a few that in fact were innocent.”16
This was a recurring theme. As long as it was happening to “bad guys,” then implicitly any brutality was permissible. Rarely has the relationship between demonization and terrorism been so concisely articulated.
During his time as chief executive, President Bush repeatedly characterized the Iraqi insurgency as “terrorist” and described its “strategic goal” as being to “shake the will of the civilized world”: “Two years ago, I told the Congress and the country that the war on terror would be a lengthy war, a different kind of war, fought on many fronts in many places. Iraq is now the central front. Enemies of freedom are making a desperate stand there—and there they must be defeated.”17 The problem was that his own intelligence did not support his claims. The argument was that al-Qaeda had reappeared in Iraq as “foreign fighters” after a thorough routing in Afghanistan, but US intelligence estimated that only 5 percent of the insurgent force comprised “foreign fighters.” The penetration of al-Qaeda into Iraq was supposed to be felt through the person of Abu Musab al-Zarqawi, but his influence was small, and his forces were under attack from the mainstream of the insurgency from early on in the occupation.18
The view of US intelligence was that the insurgency was driven chiefly by nationalist opposition to the occupation rather than by al-Qaeda-style jihadism. The tactics of the insurgency, moreover, failed an essential condition for being defined as “terrorist”: most of their actions, according to the quarterly studies conducted by the US Department of Defense, were directed against occupying troops rather than civilians.19
A similar pattern was found in Afghanistan, where larger numbers of people joined a revived Taliban movement as a result of the occupation’s brutalities, until almost 80 percent of the country had a heavy Taliban presence. A former employee of the UN mission in Afghanistan suggested that, while Taliban tactics inflicted a grueling toll on civilians, this was—to use the American idiom—“collateral damage,” a result of “technical shortcomings.” The aim was “not to terrorize the population,” but to “inflict casualties on the enemy.”20
This tendency to demonize opponents in order to justify the administration’s policy—a deliberate military goal, as the Washington Post revealed in 200621—at times left America’s allies rather frustrated. General Sir Richard Dannatt, then head of the British Army, gave an important speech in 2007 rejecting the main arguments of the “war on terror.” Reflecting on the characterization of the Iraqi insurgency as “terrorists,” he said: “By motivation … our opponents are Iraqi Nationalists, and are most concerned with their own needs—jobs, money, security—and the majority are not bad people.” He went on to make similar remarks about the insurgency in Afghanistan, regretting its lazy characterization as “Taliban.”22
THE POWER OF LABELS
It is extraordinary to think that the empire deploys such awesome force with such catastrophic results. Yet how does it successfully moralize its own actions and villainize those of its opponents? The WikiLeaks cables give us some clues. In them we find, again and again, the careful use of a legal, bureaucratic, and political language that is all about providing a normative frame for US government actions.
Returning to the case of Sami al-Hajj, the documents display the fruits of careful rituals of military-legal process, jurisprudence, and categorization that allowed him to be detained as if he had been a high-risk terrorist. These labels provided the basis for the Bush administration to claim that the people in its captivity were all or mostly “bad guys.” Yet they in turn depended upon the decisions of the Justice Department and the Bush White House in interpreting the relevant application of international and domestic law, and deciding the status of detainees. Between a captive and the entire power and authority of the US state, it was the state that had the power to apply labels and make them stick: and it was Sami al-Hajj who had to beg for his freedom despite there being no evidence against him.
This theme recurs too often. Between the armed might of the United States and its allies, on one hand, and that of loose militias gathered to repel occupying forces in Iraq and Afghanistan, on the other, it is the United States that has the power to determine what the war is about, who is a “terrorist,” and who is fighting a “just war.”
These verbal manipulations highlight the power of classifications, and the classifications of power. Whether the subject is “just war” or “terrorism,” “torture” or “enhanced interrogation techniques,” “enemy combatants” or “political prisoners,” we find that the ability to assert a definition and to back it up with force are essential elements of imperial rule. Defining and classifying are part of what states do: they define the social categories that make sense of everyday life—married, single, criminal, cop, black, white, terrorist, soldier, hero, villain. And they do this through language, law, and culture. An empire, it turns out—even amid the resort to extreme violence—cannot do without the power of ideas.
“Worse than a military attack,” the Republican congressman Peter King expostulated in November 2010, urging that WikiLeaks be categorized as a “terrorist organization.”23 Vice President Joe Biden accused Julian Assange of being a “high-tech terrorist.” Hunt him down like bin Laden, exhorted Sarah Palin.24 “Yes, WikiLeaks is a terrorist organization,” said Fox News.25
The basis of this overblown charge was that WikiLeaks was waging a “cyber-war” on the United States that placed “vital interests” at risk—particularly the flows of information necessary to track down and capture “terrorists”—thus putting American lives in danger. When WikiLeaks invited the US government to name a single cable whose publication put anyone at significant risk of harm, the State Department’s legal advisor wrote back formally declining to name a specific danger, but nonetheless ordered WikiLeaks to shut down its websites, cease publication, and destroy all the information it held.26
This charge of “terrorism” was not merely lazy or overexcited: there was real power behind it. The 2013 prosecution of Chelsea—then Bradley—Manning, the soldier who had leaked the cables to the website, depended upon the claim that she had “aided the enemy”—a charge that is close to treason and carries the death penalty. Manning had joined the armed forces in 2007 and, despite suffering bullying from other soldiers related to his homosexuality and gender identity dysphoria, excelled sufficiently to be promoted and gain a services medal. He was then deployed as an intelligence analyst in Baghdad, and it was there that he discovered “the true nature of twenty-first-century asymmetric warfare.”27 By 2010, Manning had discovered WikiLeaks, and over time developed a relationship with them that led to his disclosure of hundreds of thousands of documents, including what became known as the Iraq War Logs, Cablegate, and the Guantánamo Files, including footage of a Baghdad air strike that was subsequently criticized as a war crime. The “enemy” who Manning had supposedly aided by releasing this information was al-Qaeda. When Manning was captured, he was subject to cruel, degrading, and inhumane treatment of the sort generally inflicted on those the US government deems “terrorists.”28 This raises an obvious question: What is a terrorist?
There appears to be no agreed definition.29 Leaking secret materials is hardly a qualification in itself: US officials do it all the time as part of their public relations strategies. Apparently, the standard is: when you leak, that is terrorism; when we leak, that is fine. And perhaps one of WikiLeaks’ sins, in the view of the US government and its defenders, is precisely to have exposed how unstable the category is, and how porous is the distinction between what the US government does and what its enemies do.
JUST WAR AND TERROR
A pivotal moral justification for Western political violence is that it operates within constraints that respect civilian life. It is a standard refrain of Western military sources that “we do not target civilians.” This claim, central to the US Department of State’s overseas public relations strategy,30 is made with apodictic solemnity. It is what is held to separate “terrorism” from the actions of those claiming to wage war against “terrorism.” As George W. Bush explained, “Every life is precious. That’s what distinguishes us from the enemy.”31 Terrorism is the opposite of the just war—both an illegitimate form of political violence and a justification for legitimate political violence.
The difficulty is that there appears to be no commonly agreed definition of terrorism. For example, one current US government definition claims that terrorism “is premeditated, politically-motivated violence perpetrated against non-combatant targets by sub-national groups or clandestine agents.”32 This definition leads us to an immediate problem. Aside from the fact that the exclusion of state institutions as potential agents of terrorism is arbitrary and unfounded, this definition seems to exclude the bombing of US military bases, which are staffed by combatants.
The State Department caught up with this in 2003: “We also consider as acts of terrorism attacks on military installations or on armed military personnel when a state of military hostilities does not exist at the site, such as bombings against US bases.”33 Yet even this refinement left a problem, by excluding those forces whom the US routinely characterized as terrorist for attacks on US soldiers while on combat duty in Iraq and Afghanistan.
Perhaps a solution could be found by invoking the broader definition used in a US army manual, where terrorism is understood as “the calculated use of violence or threat of violence to attain goals that are political, religious, or ideological in nature. This is done through intimidation, coercion, or instilling fear.”34 But this leads to an even worse conundrum. Looking at the range of options that occupying forces have permitted themselves in Iraq and Afghanistan, one would have to ask what exactly distinguishes US actions from those of terrorists? Examining just one batch of WikiLeaks materials, the Iraq War Logs,35 comprising 391,902 US Army field reports from Iraq, tells us several things: that the US government was aware of many more civilian casualties in its occupation than it publicly admitted;36 that it had received hundreds of reports of civilians, including pregnant women and the mentally ill, being brutally gunned down for coming too close to occupation checkpoints;37 that US soldiers knowingly opened fire on surrendering Iraqi insurgents;38 that its practice of torture continued after the revelations about Abu Ghraib; and that it had failed to investigate hundreds of reports of torture, rape, and murder by Iraqi police and troops under its command.39
Similar revelations emerged the Afghan War Diary40—a collection of 91,731 US military logs pertaining to the combat in Afghanistan. They disclose the gunning down of civilians at check-points;41 a “revenge” mortar attack on an Afghan village, killing five civilians, after a group of occupying troops experienced an IED explosion nearby;42 CIA paramilitaries gunning down a deaf, mute civilian who was running away from them;43 US Marines opening fire on civilians in Shinwar, killing nineteen and wounding fifty.44
This archive—only a small sample of what has taken place—is a record of breathtaking atrocity and cruelty. Moreover, as Dahr Jamail demonstrates in Chapter 12, below, these events were not incidental to the “mission.” Their origins can in fact be traced to the beginning of the war itself.
One of the defining elements of American empire is that it has no colonial aspirations. Territorial land-grabs are superfluous: the point is to have access to markets and resources under stable political regimes. Ideally, these regimes are acolytes of the “free market,” willing to integrate their economies into a globalizing, US-led system. Saddam Hussein had been an ally of the United States during the period of his war with Iran, but by 1990–91 his regime was considered an unreliable outpost of senescent Arab nationalism. The Bush administration thus made the conquest of Iraq the lynchpin of its global strategy.
The new regime was to be, as the Economist phrased it, a “capitalist dream.” The occupying authority passed a law, Order 39, which “announced that 200 Iraqi state companies would be privatised; decreed that foreign firms can retain 100 percent ownership of Iraqi banks, mines and factories; and allowed these firms to move 100 percent of their profits out of Iraq.”45 But in order to build a new, “free market” state on the rubble of the Ba’athist state, with unemployment rising to 70 percent46 on some estimates and no Ba’athist army to keep control, the US would need political allies and an armed force capable of maintaining order once the old state was dismantled.
This is where the input of Iraqi exiles such as Ahmed Chalabi and, to a lesser extent, Kanan Makiya, proved useful.47 One of Chalabi’s strategic inputs was to persuade the US to forge an alliance with the Iran-backed Shi’ite movement, the Supreme Council for the Islamic Revolution in Iraq (SCIRI), later known as the Supreme Iraqi Islamic Council (SIIC).48 This movement, founded in Tehran under the leadership of Muhammad Baqir al-Hakim, was initially sponsored by the Islamic Republic as part of a project to promote pan-Shi’ite unification.
SCIRI had little support in Iraqi society, but it did have an established intelligence and military apparatus. Its militia, the Badr Army, was built and encouraged by the Iranian government during its war with Iraq, and mandated to run Basra in the event that Iranian forces took control. In effect, it had been designed as an occupying government. The US was therefore persuaded to integrate it into the new post-Ba’ath security apparatus. It took over several southern Iraqi cities, including Basra, replaced local police commanders with its own personnel by fiat, and quickly became known for its brutality in countering opposition.49 It became a virulent source of anti-Sunni sectarianism in the Iraqi state, a key enforcer of the new regime (often controlling the torture chambers that, so the UN told us, were “worse than under Saddam”50), and a decisive force in the civil war that gripped Iraq in 2006.
But the Badr militia could not control Iraq by itself. Its influence was limited at first to cities and towns in the predominantly Shi’ite south. Gradually, the US began to build up a new Iraqi army and police force, as well as a paramilitary agency trained under General David Petraeus, known as the Special Police Commandos (SPC). Petraeus explained his role in forming these “paramilitary units,” first revealed to the public in September 2004, with some pride. Initially led by former Ba’athist General Adnan Thabit, the commandos were under the control of the Ministry of Interior and trained by the US military, as well as by the Virginia-based contractor USIS, which was alleged to have been directly involved in some killings by the commandos.51 The paramilitary strategy was coordinated under John Negroponte, the US ambassador to Iraq, whose salient previous experience involved organizing counter-insurgency death squads in El Salvador. A US military official explaining the logic of the program to Newsweek suggested that it was about punishing Sunnis for their opposition to the occupation: “The Sunni population is paying no price for the support it is giving to the terrorists … From their point of view, it is cost-free. We have to change that equation.” This would seem, on its face, a straightforward declaration of terrorist intent. Newsweek aptly dubbed this operation “the Salvador Option.”52
The kinds of activities attributed to the SPC, subsequently dubbed the National Police, include torture, mutilation, and murder. A fearsome unit attached to the SPC, known as the Wolf Brigade, comprised Badr Organization members. It launched notable counter-insurgency operations in cities such as Mosul, with the backing of US troops, and its leader Abul Walid became notorious for his interrogation of captured, and obviously beaten, “terrorist” suspects on the television program “Terrorism in the Grip of Justice.” Broadcast on the Pentagon-funded Al Iraqiya network, the program augmented the terror that Walid’s paramilitaries were promulgating in the streets.
The Wolf Brigade was also held responsible for a detention center discovered in the Iraqi Ministry of Interior, in which bodies were found with signs of horrendous torture: burn marks, bruises from severe beating, and drilling around the kneecaps.53 In one astounding incident, commandos contacted a Baghdad morgue demanding that the metal handcuffs found on the corpse of a tortured and murdered man be returned on the grounds that they were too expensive to replace.54
Even if one were to accept that counter-insurgency was categorically distinct from terrorism, any boundary between counter-insurgency and sectarian terror in this context was decidedly murky and porous. And this was not an accident, but a logical outcome of the American strategy. To construct an Iraqi “free market,” a strong state was needed—not only to suppress the opposition but to promote the development of markets where public provision had once existed. Sectarianism provided not only a technique of control, modeled on the old colonial principle of “divide and rule,” but also the political forces capable of implementing it.
ATTACKING CIVILIANS, REDEFINING “CIVILIAN”
Another reason for the very high number of civilian casualties arising from the Bush-era wars—whether one believes the lowest estimates acknowledged in the leaked US documents (66,000 civilian deaths),55 or the Lancet’s findings (600,000 deaths, mostly civilian)56—might be that US military rules in the “war on terror” permitted the killing of civilians during air strikes. As former Pentagon advisor Marc Garlasco explained, “[I]f you hit 30 as the anticipated number of civilians killed, the airstrike had to go to Rumsfeld or Bush personally to sign off,” but otherwise no one need be told.57
This standard authorizes a certain level of civilian killing, thus belying the claim that “every life is precious” to war planners. Further, “anticipation” is at least partially a subjective response, and allows a degree of latitude on the part of military tacticians: there is no reason in principle why many more than thirty might not be killed in a single strike, without the need to trouble the president. The practice of the US military in many such cases was to insist that those killed were “insurgents.” Chief Warrant Officer Dave Diaz, heading Special Forces A-Team in Afghanistan, put the point bluntly: “Yes, it is a civilian village, mud hut, like everything else in this country. But don’t say that. Say it’s a military compound. It’s a built-up area, barracks, command and control. Just like with the convoys: If it really was a convoy with civilian vehicles they were using for transport, we would just say hey, military convoy, troop transport.”58
There is evidence that this approach was institutionalized. Consider the case of the footage from a massacre in Baghdad, released by WikiLeaks under the heading “Collateral Murder.”59 The thirty-nine-minute video, consisting of footage shot from a US Apache helicopter, shows a sequence of three incidents in Baghdad in 2007, during Bush’s so-called “troop surge.” It begins with an attack initiated by the helicopter pilot on a group of Iraqis, among whom were two agency journalists. The pilot is heard to report that some of the men appear to be carrying weapons, then asking permission to “engage.” He is told there are no US personnel in the area and that he has permission. Soon, he is told to “shoot,” “light ’em all up,” and, as he does so, is repeatedly told, “keep shootin’ … keep shootin’ … keep shootin’.” Eventually, as the camera alights on eight dead people, including a Reuters journalist who had tried to escape, the voice of someone identified as Hotel Two Six says to the pilot, “Oh, yeah, look at those dead bastards. Nice. Nice. Good shootin’.” “Thank you,” the pilot replies.
This is but the first of a series of three incidents recorded in the footage. The US military argued that it had good grounds for making a positive identification of those attacked and reasonable certainty of hostile intent. It claims that the grainy images taken from the footage show at least two men carrying weapons. In fact, the shapes indicated are every bit as much a Rorschach nightmare as those grayish blobs on satellite images that Colin Powell’s infamous UN speech of February 2003 referred to as WMD production plants. As if to satirize their own claim, the military also suggested that the two Reuters journalists killed were holding cameras that “could easily be mistaken for slung AK-47 or AKM rifles.”60 The army’s investigation also referred to the “furtive nature” of movements made by the cameramen, giving “every appearance of preparing to fire an RPG on US soldiers.” Just as importantly, the military claimed that the individuals killed were legitimately attacked because they were a group of “military-age men,” and thus represented a danger. The war logs record all deaths from the incident as “enem[ies] killed in action,”61 despite only two men being positively identified as bearing weapons.
The army’s report into this incident naturally emphasizes the perspective of the soldiers who took the decision to kill, citing all the possible operational factors demanding a subjective judgment call and favoring the use of deadly force. In a way, this is reasonable: occupation soldiers are acting according to the training they have been given and the mission goals they have been set—and within an occupation context that often necessitates violence against civilians as a condition of success. But there are two crucial classifications being used to frame the killings and justify them: “military-age men” and “enem[ies] killed in action.” These are common ways in which the category of “civilian” is modified. The classification of “enemy killed in action” is the most commonly used in the Iraq War Logs to describe those killed by US campaigns. For example, the US military counted 1,723 killed in the Fallujah area in 2004, during its most determined assault. Of these, 1,339 were deemed “enem[ies] killed in action.”62 This would leave 384 potential civilians killed. But during the two major battles, in April and November, the most conservative estimates suggested that approximately 600 civilians had died in April, then 800 in November.63 Given this, it is plausible that a large number of those classified as “enem[ies] killed in action” were in fact civilians.
As for the classification of “military-age men,” this typically refers to males aged between fifteen and fifty-five, so includes most male civilians. When the US launched its assault on Fallujah in November 2004, it encouraged Iraqi civilians to flee before the bombing began—but prohibited all males estimated to be in this age range from escaping. Newsweek reported in 2006 that it had become common for US troops to treat all “military-age men” in Iraq as enemies. Later it emerged that soldiers charged with committing war crimes in Baghdad alleged that they had been given orders to “kill all military-age men.”64 More recently, the Obama administration used this category adroitly to misrepresent its drone strikes as attacks largely on “militants.” In an extraordinary, lengthy article in the New York Times, based on interviews with dozens of Obama’s advisers, it was revealed that Obama
embraced a disputed method for counting civilian casualties that did little to box him in. It in effect counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent. Counterterrorism officials insist this approach is one of simple logic: people in an area of known terrorist activity, or found with a top Qaeda operative, are probably up to no good.65
This might explain why, despite only forty-one individuals allegedly having been targeted for drone assassination by the Obama administration, the human rights organization Reprieve has counted a total of 1,147 civilians killed in various attacks. In Pakistan, for example, this meant that, in strikes aimed at twenty-four individuals, 874 people died, 142 of them children. One remarkable fact arising from this is that many of the “high value targets” identified by the administration have been reported to have been killed several times over. As Reprieve pointed out: “These ‘high value targets’ appear to be doing the impossible—dying not once, not twice, but as many as six times.”66
However, the tendency to identify “military-age men” as enemies only partially explains the high civilian body count. For, as a study based on the Iraq Body Count figures suggests, 46 percent of those killed by US air attacks in Iraq were women, and 39 percent were children.67 The evidence is that, from checkpoints to air strikes, house raids to street battles, the methods adopted in the course of occupation necessitated a heavy death toll of civilians.
CIVILIAN TARGETS
It may be argued that this is all very well, but these points mainly pertain to the collateral killing of civilians. Civilians are not the main target; their deaths are an unfortunate by-product of a difficult war. Before testing this claim, it is worth pointing out how far we are drifting into the logic of al-Qaeda. This is what Osama bin Laden said of the World Trade Center attacks in a recording from October 20, 2001:
The men that God helped [attack, on September 11] did not intend to kill babies; they intended to destroy the strongest military power in the world, to attack the Pentagon that houses more than sixty-four thousand employees, a military centre that houses the strength and the military intelligence. The [twin] towers [were] an economic power and not a children’s school or a residence. The general consensus is that those that were there were men that supported the biggest economic power in the world.68
So, bin Laden first declared that the deaths of those whom he classified as “innocent” and “civilians” were unintended, a collateral effect of a just war, and secondly defined “civilian” in a way that suited his political purpose. To claim that one “did not intend” to kill civilians when one chooses methods and targets that are likely to do little else rings hollow.
In that light, let us look again at how the United States waged its war in Iraq. The battleground was chiefly urban, a matter of winning cities one by one. The twin assaults on the “Sunni triangle” city of Fallujah in April and November of 2004 quickly became emblematic of the occupation. It had been one of the most peaceful cities in the early months of the occupation, but the first violent scenes broke out when US forces shot at a peaceful demonstration against the American decision to occupy a local school, on April 28, 2003. Twenty people were killed, while shots were fired at those trying to recover the bodies, and even ambulance crews came under fire. An attempt was made to capture the city in April 2004, after the killing of four mercenary contractors by Iraqi crowds. The operation, known as Vigilant Resolve, saw 600 Iraqis killed—but US troops were obliged to make a temporary retreat.
In 2007, WikiLeaks released a remarkable document that shed some light on all of this: a classified US government report into the April 2004 siege of Fallujah.69 One of the justifications for the US-led assault was that the place was teeming with al-Qaeda operatives. The classified report, on the other hand, suggested that it was more to do with the fact that the place had become a “a symbol of resistance” to the occupation, which had “dominated international headlines.” The report described the loose cooperation between opponents of the US as resembling an “evil Rotary club” rather than a centralized al-Qaeda hub.
“Enemy combatants,” the report said, “came from several broad categories including former Ba’athists and soldiers of the Saddam regime, nationalists, local Islamic extremists, foreign fighters, and criminals.” This was roughly what good reporting and intelligence had been saying about the character of the Iraqi insurgency as a whole, though the picture was denied by military leaders. The report suggested that the opposition would have been easy for US forces to defeat, but that the operation was brought to an end for political reasons partly related to the Abu Ghraib torture scandal—a decision that left Paul Bremer, who had somehow ended up as the head of the Iraqi state, “furious.”
Bremer’s fury was understandable: the settlement looked like a defeat for US forces in a city that had become a symbol of resistance. At any rate, unable to let that stand, the United States subjected the city to repeated raids and assaults. For three weeks after the ceasefire was announced, the bombing continued, thus rendering it—as the report acknowledged—“a misnomer.”
In November 2004, the US launched its most fearsome assault yet, known as Operation Phantom Fury. In the prelude to the attack, the US bombed the city to “encourage” those inhabitants who could to flee—barring “military-age males,” who were prevented from leaving—then sealed the city off to prevent those remaining from escaping. War crimes such as the bombing of one hospital and the military take-over of another were openly reported, but less well reported were the beatings carried out against doctors and the attacks on ambulances. It later emerged that the US had used white phosphorus, a chemical that burns the flesh and melts right down to the bone.
NGO estimates maintained that between 4,000 and 6,000 were killed in the assault, and that 36,000 houses, 9,000 shops, sixty-five mosques and sixty schools were demolished. While the operation had been justified by the need to evict an al-Qaeda cell said to be operating in the city, the leaders of the resistance there were found to be local. Some 350,000 dispossessed refugees were eventually filtered back into the city, subjected to biometric scanning, and coerced into military-style battalions carrying out forced labor to reconstruct the city.
The assault on Fallujah stood out for the brutality of the methods deployed, but the same techniques were used to conquer other Iraqi cities. In mid 2007, a detailed report by thirty NGOs for the Global Policy Forum analyzed the modus operandi of the occupiers when assailing major towns and cities. The report discussed the main techniques for subduing major population centers in Iraq, citing seven that were of particular importance:
1) encircle and close off the city, as in Fallujah and Tal Afar, where the occupiers built an eight-foot-high wall around the entire city before launching an attack;
2) forcefully evacuate those who remain, as in Fallujah and Ramadi;
3) cut off food, water and electricity, as in Fallujah, Tal Afar and Samarra;
4) confine reporters and block media coverage, with the systematic exclusion of all non-embedded reporters during such assaults;
5) conduct intense bombardment, usually targeting the infrastructure;
6) conduct a massive urban assault, using sniper fire, and put survivors through violent searches;
7) attack hospitals, ambulances and other medical facilities.70
WHEN TERROR IS THE NORM
It may finally be argued that all of this is lamentable but nonetheless represents a regrettable deviation from normal American conduct that will quickly be corrected. The Bush administration was an extreme one, it might be argued, which abandoned the precepts of multilateralism and law and order to wage a profoundly unpragmatic war. There may be elements of truth to this. However, the brutalities exposed by WikiLeaks are not aberrations. From the conquest of the Philippines to the occupation of Haiti, the methods of American war-making have depended upon terrorizing civilians. The scale of violence seems to be far more determined by the context in which war is conducted than by the ideology of a given administration waging war.
It has been argued that the slide into attacking civilians is built into modern war: what begins with tactics that transfer the risk of war to civilians ends with tactics that treat civilians as the bedrock of opposition and a legitimate target.71 One could, on the basis of the foregoing, take this point further. Terror is a quintessential element of the American empire, as important as soft power and hard cash. If the American way of empire depends upon maintaining a global plexus of national states aligned to US interests and in favor of “free markets,” civilian populations must be deterred from pursuing alternatives every bit as much as armed states.
Yet, as we have seen with the pursuit of WikiLeaks backed by courts and politicians, justified by the label of “terrorism,” part of being an empire means having the power to assign classifications, and to make them stick. As a result, “terrorism” is always something the enemy does.
WHAT IS TORTURE?
Among the practices exposed in the WikiLeaks documents are those taking place within the extensive US network of detention and torture. The Guantánamo Files, in particular, identify how the system of torture became a feedback loop, in that the inherently unreliable information extracted through torture was used to identify detainees who could in turn be tortured. They show that many detainees were held despite the knowledge that they had no association with the Taliban or al-Qaeda.72
In a stroke of grim irony, the United States responded to the cascade of revelations through WikiLeaks by capturing one of the people accused of leaking the original cables from the State Department, US army private Bradley (now Chelsea) Manning, and torturing him. A State Department spokesperson who criticized this practice was forced to resign. Yet it appears that none of those responsible for the torture program have lost employment as a result, nor will they be charged—much less stripped naked and thrown into solitary confinement for almost a year.73
All of this goes on while the soothing bromide “We do not torture” is ceaselessly repeated.74 For, while US politicians have never seemed to be in much doubt about what “terrorism” is, when the subject of “torture” arises a strange epistemological relativism intervenes. Victims may be waterboarded, so that they involuntarily inhale lungfuls of water and are almost drowned. They may be given the strappado, with their hands bound behind their back, and suspended from the ceiling so that the pressure crushes their chest until they die. They may be kept in coffins filled with insects, raped with chemical light sticks, and forced to masturbate or simulate sex acts. But, the politicians query, is this really “torture”?
What are the laws concerning torture in the United States? The government ratified the UN Convention Against Torture in 1994, a decade after it was adopted by the UN General Assembly. Article 1 of the convention defined torture as
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
This seems fairly precise, going into some detail about who can be guilty of torture, to what end, and under what circumstance. The convention also makes the following categorical statement: “No exceptional circumstances whatsoever, whether a state of war, or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.” As the National Lawyers Guild argues, this seems to provide an unequivocal argument in favor of prosecuting the perpetrators of torture.75 But there are three problems that throw this definition into some obscurity. First, it is not clear what qualifies as “severe.” It does not seem to be possible to quantify pain in an objective way, as it is a subjective response.
The infamous “torture memos”—a set of legal memoranda drafted by Deputy Assistant Attorney General John Yoo in August 2002 that carefully defined torture so that anything short of serious injury or organ failure would be permissible—played on precisely this necessary ambiguity. Second, the insistence that torture must be “intentionally” inflicted makes it almost impossible to verify that torture has been inflicted, short of a confession. Third, by excluding pain or suffering arising from “lawful sanctions,” the convention opens up significant leeway for states to legitimize forms of torture as legal penalties.
The vagueness of this definition of torture is not simply a matter of unfortunate phrasing in the convention, but derives from two facts external to the text. The first is that “torture” is inherently a prescriptive, normative term and, like any term in political language, is contested. The second is to do with the legal system itself. The US empire is based on a liberal world order under law. But these norms pull in opposing directions. The right to be free from torture comes into conflict here with the right of states to punish. This partially explains why, even though the American empire has always tortured, it has never had a coherent position on torture—those who torture have always had to confront those for whom torture is anathema by America’s own standards.
Many polls find that most Americans view torture as an acceptable way of treating “those people,” believing that it generates actionable intelligence—a fact that the historian Greg Grandin relates to the long tradition of demonology that begins with the origins of the United States as a settler-colonial state based on slavery, always threatened by racial “others.”76
But even in the highly charged atmosphere of the “war on terror,” many CIA staff found the infliction of torture intolerable. Those who witnessed the punishments inflicted on Abu Zubaydah, a Saudi national and Islamist fighter whom the United States tortured in Guantánamo under the erroneous pretext that he was connected to al-Qaeda, were said in internal documents to be “very uncomfortable … to the point of tears and choking up.”77
It is these moral and political differences that are given expression in the form of legal arguments. In almost all legal situations, there will be more than two relevant legal concepts that enter into the argument, thus opening up a surfeit of possible legal interpretations. When it comes to applying these laws, there is nothing but superiority of power to decide between rival interpretations.78
This has been particularly useful for the US government since the CIA alighted on the advantages of psychological torture during its “mind-control” experiments between 1950 and 1962. The result of this intense human experimentation was a dark scientific breakthrough: the CIA learned that torture methods involving psychological manipulation and no physical contact were far more effective than physical torture. Having spent so much time looking for the frailties and vulnerabilities of the human organism, they developed a sophisticated system of torture that left psychological wreckage, but no physical evidence. The two key elements were “sensory deprivation,” such as hooding or masking, and “self-inflicted pain,” such as stress positions. These are the types of methods that the CIA classifies as “enhanced interrogation techniques,” and thus were perfectly congruent with America’s international legal obligations.79 Once again, the power to classify is an immense, indispensable asset for the empire.80
The WikiLeaks cables tell us much about America’s torture programs, alongside the evidence from the Taguba Report, the Senate Intelligence Committee, and investigative journalism. The examples that follow will show how the US developed its torture complex, building on past practices and developing a series of legal and moral justifications as it did so.
THE GUANTÁNAMO FILES
Before Abu Ghraib, there was Guantánamo. In January 2002, brandishing photographs of shackled, blindfolded prisoners in orange jumpsuits, the US government proudly announced that it had opened a new military prison in its forty-five-square-mile colony in Guantánamo Bay, Cuba.
The history of the naval base in Guantánamo Bay explains a lot about the peculiar nature of the American empire. From the earliest days of the nation’s foundation, US elites had nurtured the goal of possessing Cuba, then under the control of the Spanish Empire. They had even tried purchasing the island, all to no avail. It was the appearance of a vigorous anti-Spanish revolt in Cuba from 1895 that opened the door to an American subvention. The Spanish were unable to defeat the insurgents, and the United States quickly moved to take control of the situation. Deeming the Cuban population “incompetent” to “maintain self-government,”81 they intervened ostensibly on behalf of the rebels, in the name of liberty, defeated the Spanish, and occupied the island. The structures of segregation, mafia capitalism, and dictatorship that emerged in the ensuing period were installed by the United States. This was the same model of using military power to create client regimes in lieu of direct political rule that would be deployed by the United States across other parts of Latin America in the following century.82
It was in 1903 that the US first “negotiated” control of forty-five square miles around Guantánamo Bay as a base for US Navy ships, which stood firm until 1959—and even after that the Castro government that overthrew the regime was unable to compel the US to leave the territory. Following Kennedy’s futile attempts to crush the Cuban revolution during the Bay of Pigs fiasco, and the near-miss of the Cuban Missile Crisis of 1962, the United States decided to create a permanent Marine base in Guantánamo, ostensibly to protect the United States against a Cuban attack. Here it sat, almost forgotten, until 2001.
The “war on terror” was launched with the specific intention of accumulating thousands of captives and interrogating them over a long period. And since the interrogation had to take place offshore, where—so the rationale went—detainees would not be protected by the US legal system, Guantánamo Bay provided an ideal location.83 In January 2002, a military prison was opened in the base, consisting of three distinct areas, known as Camp Delta, Camp Iguana, and Camp X-Ray.
By 2005, there were 540 prisoners known to be in the Guantánamo Bay prison camp. Of these, only four had been charged with a crime. The Bush administration nonetheless defended the camp on the grounds that prisoners were “well-treated,” and there was “total transparency.”84 This was unpersuasive: anyone who knew that prisoners had been tortured at the camp owed such knowledge to leaks. Among the raft of public testimony available on this was that of a US soldier, Erik Saar, who worked as a translator in interrogation sessions. Saar detailed practices of physical assault and sexual torture. Even the official probe into the camp acknowledged that Guantánamo had pioneered the practices later used against Iraqi prisoners in Abu Ghraib.85
But the rationale for the prison, and thus implicitly for any unpleasant treatment visited upon detainees, was that the people locked up there, despite having gone through no judicial process, were certainly “terrorists” on a mission to attack the United States. As Bush put it in his State of the Union address in 2002, “Terrorists who once occupied Afghanistan now occupy cells at Guantánamo Bay.”86 Dick Cheney, out of office but not out of mind, repeated in 2009 that the prison contained “the worst of the worst.”87
The WikiLeaks documents allow us to see how such labels relate to reality. The Guantánamo Files, leaked in April 2011, detailed the cases of almost all of the 779 prisoners held at Guantánamo.88 Consisting centrally of memoranda signed by the commander at Guantánamo, they show that the majority of detainees were known by their captors to be unconnected to al-Qaeda, and they identify at least 150 men known to be civilians seized by mistake, who were then detained for years without trial.
The files, discussed on the WikiLeaks site by the journalist Andy Worthington, corroborated the details obtained through previous campaigns, including the release of documents pertaining to prisoners who had been through the Combatant Status Review Tribunals won in a lawsuit filed by media organizations.89 As a result of this work, it was already clear that hundreds were held for no good reason, some 600 prisoners having been eventually released for lack of evidence.90 The new documents, Worthington explained, show
why it was that Major General Dunlavey, who was the commander of Guantánamo in 2002, complained about the “Mickey Mouse” prisoners, the number of “Mickey Mouse” prisoners, as he described them, that he was being sent from Afghanistan. Here they are. Here are the farmers and the cooks and the taxi drivers and all these people who should never have been rounded up in the first place and who ended up in Guantánamo because there was no screening process.91
Aside from those who were manifestly civilians snatched in an indiscriminate way by US forces, there are others who are held on the basis of accusations made by supposedly “high value” detainees. These include people who were tortured for information, prisoners who were mentally unstable, others who would have good reason to fabricate accusations in order to gain preferential treatment, and notorious liars.92
In effect, what the US seems to have created is a global apparatus that does not so much catch “terrorists” in order to put them on trial as capture hundreds of people in order to find ways to label them as “terrorists.” The machinery is, in its way, an impressive attempt to substantiate the US government’s claim that its opponents in Afghanistan and Iraq were all, in fact, “terrorists.”
The singular failure of the facilities to turn over many “terrorists” led to both public and Congressional opposition, and was expressed in Barack Obama’s presidential campaign in 2008. But Obama kept the facilities open. In March 2011, just a month before the WikiLeaks revelations hit, President Obama had signed an executive order mandating the ongoing indefinite detention of prisoners at Guantánamo.93
This was almost certainly an embarrassment. The US media, however, rushed to the president’s aid. While the overseas press noted the revelations of brutal and unjust behavior by US forces, the American media systematically downplayed this fact. While publishing the leaks, they stressed the light thrown on “al-Qaeda” and its activities—thus validating the camp’s supposed “intelligence-gathering” function.94
FROM VIETNAM TO IRAQ
The historical origins of this practice can be traced to the CIA’s postwar development of torture techniques and apparatuses, as it sought to prop up a network of dictatorships and states aligned to the US. The surreal investment in “mind-control” research on the part of the Agency was initially justified as a legitimate defensive response to communist “brainwashing,” but quickly assumed an offensive purpose. This also drew in leading psychologists, such as the behaviorist Donald Hebb, in a series of human experiments.95
This research constituted the first attempt to rationalize and modernize the practice of torture, making it subtler than traditional “rack” methods. Nonetheless, the CIA did not abandon those older means. The main institutional framework for the dissemination of torture was, at first, the Office of Public Safety (OPS), a division of USAID. As part of this offensive, the OPS trained over a million police officers in forty-seven nations and taught them the interrogation techniques that the CIA had been developing. The justification for this was the need to break the spine of “communist subversion” in these countries. A major theater of these operations was South Vietnam, where the US had struggled to preserve French colonial power, and then to uphold a dictator allied to the French and the United States.
From 1965, the CIA launched a “counter terror” program whose remit was, ironically enough, to deploy the “techniques of terror—assassination, abuses, kidnappings and intimidation—against the [Viet Minh] leadership.” Out of this program was developed Operation Phoenix—a dirty war in South Vietnam to destroy Viet Minh “infrastructure” by killing or capturing leading fighters, with those captured subjected to imaginative forms of torture. The program eventually accounted for “82.9 percent of [Viet Minh] killed or captured.” In truth, however, only a minority of those were senior Viet Minh members, and over half were not members at all. In addition, rather than imposing a colonial policy of territorial ownership, these methods were useful in creating a loyal dictatorship that would run Vietnamese affairs on behalf of the US empire. As part of a wider process known as “Vietnamization,” the program was therefore gradually turned over to the control of the South Vietnamese bureaucracy.96
The CIA was thus freed, with this experience under its belt, to turn its attention to other global frontiers. The lessons of Phoenix were applied in Latin America, in a program known as “Project X,” in which the CIA and military intelligence trained officers from Latin American societies in the techniques of torture. The training manuals developed for these conflicts schooled recruits in the use of interrogation techniques such as the abduction of family members of the detainee, and in how to assess targets “for possible abduction, exile, physical beatings and execution.” These were the hallmarks of Phoenix tactics.
Alongside these techniques, however, the CIA continued to develop its psychological torture repertoire, using “psychological distress” and “intolerable situations,” “isolation, both physical and psychological,” and a series of subtle techniques designed to “induce regression.” The threat of pain, or “self-inflicted” pain, “usually weakens or destroys resistance more effectively” than pain inflicted by the interrogator, which may only “intensify” the detainee’s “will to resist.” The use of these more sophisticated techniques always involved, from the beginning of the CIA’s “mind-control” experiments, the participation of professional psychologists. These techniques were disseminated throughout the military elites of ten Latin American states allied to the US government and were instrumental in securing the Reaganite victory over leftist and popular movements in Central America.97
These were the methods revived at the inception of the “war on terror,” institutionalized at Guantánamo and Bagram, and transferred to Iraq. Many familiar methods, blending both physical and psychological elements—including hooding, beating with hard objects, threats against family members, stress positions, being stripped naked and kept for days in solitary confinement, rape, laceration, and the use of the horrible medieval torture technique called the strappado—were found to have been used by US forces themselves.
Nor was this just an Abu Ghraib phenomenon. At Camp Mercury, for instance, a military prison set up on the outskirts of Fallujah, prisoners continued to be detained and subjected to brutal torture—a process known to the 82nd Airborne Division troops guarding the prisoners (who referred to themselves as “Murderous Maniacs”) as “fucking” them. The ACLU gained sworn testimony that soldiers regularly “beat the fuck out of” detainees. This was systematic and widespread, and many of the techniques, as leading torturers including the military intelligence chief at Abu Ghraib attested, had been directly learned from CIA operatives in Guantánamo Bay and Afghanistan.98
But, just as in Vietnam, the US did not intend to stay forever in Iraq. Its goal was to generate a reliable Iraqi state, ideally with some democratic legitimacy, able to take on the responsibilities of government in broad alignment with US interests.
One of the revelations contained in the Iraq War Logs was that US troops refused to investigate hundreds of reports of brutal torture carried out by the Iraqi forces under their command. This was a result of an edict issued by Donald Rumsfeld known as “Frago 242,” disclosed in the Iraq War Logs.99 “Frago 242” was a “fragmentary order” that obliged US personnel occupying Iraq not to investigate any breach of the laws of war pertaining to torture unless occupying personnel themselves were directly involved. Iraqi forces, trained and supervised by the US military, were thus enabled to practice the most egregious forms of torture:
A man who was detained by Iraqi soldiers in an underground bunker reported that he had been subjected to the notoriously painful strappado position: with his hands tied behind his back, he was suspended from the ceiling by his wrists. The soldiers had then whipped him with plastic piping and used electric drills on him. The log records that the man was treated by US medics; the paperwork was sent through the necessary channels; but yet again, no investigation was required.
…
[T]he entirely helpless victim—bound, gagged, blindfolded and isolated—[is] whipped by men in uniforms using wire cables, metal rods, rubber hoses, wooden stakes, TV antennae, plastic water pipes, engine fan belts or chains. At the torturer’s whim, the logs reveal, the victim can be hung by his wrists or by his ankles; knotted up in stress positions; sexually molested or raped; tormented with hot peppers, cigarettes, acid, pliers or boiling water—and always with little fear of retribution since, far more often than not, if the Iraqi official is assaulting an Iraqi civilian, no further investigation will be required.
Most of the victims are young men, but there are also logs which record serious and sexual assaults on women; on young people, including a boy of 16 who was hung from the ceiling and beaten; the old and vulnerable, including a disabled man whose damaged leg was deliberately attacked. The logs identify perpetrators from every corner of the Iraqi security apparatus—soldiers, police officers, prison guards, border enforcement patrols.100
Surveying the WikiLeaks documents, the Bureau of Investigative Journalism noted that, for the 180,000 people held captive in Iraqi prisons from 2004 to 2009, the US military received 1,365 reports of torture. Nevertheless, the US authorities in Iraq continued to inspect the prisons and find “no abuse, no evidence of torture in those facilities.”101 It later transpired in a Guardian investigation that the US was closely involved in the torture centers through the Special Police Commandos, who were trained by a special forces veteran from the Reagan-era death squad wars in Central America, Colonel James Steele.
US advisors were directly involved, according to both American and Iraqi witnesses, in the use of torture.102 This showed the policy of “Iraqization” in motion. As in previous wars, the US took initial responsibility for violence on all fronts and gradually built a little local epigone to take up its mantle.
THE CIA BUST
In December 2014, an avalanche hit the CIA. The US Senate released an investigation into the CIA’s use of torture103 in the context of the “war on terror.” The report had been circulated among state personnel for two years, and subsequently “updated,” before being released to the public. The “update” actually redacted 93 percent of the content. But even the pared-down public version was damning, and complements with copious detail and documentation much that is revealed in the WikiLeaks sources.
The report slammed the agency for deploying methods that were both “brutal” and “ineffective,” neither contributing to significant capture nor disrupting a single authentic “plot.” The methods disclosed in the CIA’s documents included forcing water into detainees’ rectums; waterboarding a detainee until he became totally unresponsive and bubbles gurgled out of his open mouth; forcing detainees with broken hands or feet to stand in the stress position for hours; playing “Russian Roulette” with a detainee; threatening to rape a detainee’s mother and slit her throat; and causing a detainee to die of hypothermia after beating and punching him for extended periods.
Some of the worst torments were inflicted on Abu Zubaydah, a Saudi national captured in Pakistan, alleged to be associated with al-Qaeda. His capture was touted by the CIA as its biggest success until the capture of a leading associate of Osama bin Laden, Khalid Sheikh Mohammed. Zubaydah’s file at Guantánamo shows that, while he admitted involvement with several armed jihadi groups, he persistently denied involvement with al-Qaeda. It seems that he was telling the truth.104 But interrogators were so desperate for solid information that they began to subject him to a regime of torture. He spent approximately two weeks inside a coffin-sized box and was subject to sleep deprivation, stress positions, and slaps. At one point, insects were placed inside the coffin to add to his terror. Much of the interrogation took place while a bullet wound he incurred during capture was allowed to fester and rot without treatment. As much of this went on, the US decided to “disappear” Zubaydah, deciding that he should no longer be accessible to the International Red Cross.105 The US government never charged Zubaydah with any crime.
As with previous CIA torture practice, for the program to be effective there had to be a range of professionals willing to assist. These included the two psychologists who helped devise the torture program over a period of seven years and were paid $81 million for their services.106 On one occasion they were escorted to Thailand, where Abu Zubaydah was being held, and given the opportunity to use the detainee as an experimental subject on whom to perfect the techniques they were developing, which directly drew on past CIA expertise in the field. In bidding for the contract, the psychologists recommended such techniques as “The attention grasp, walling, facial hold, facial slap, cramped confinement, standing, stress positions, sleep deprivation, water-board, use of diapers, use of insects, and mock burial.”
The CIA had been given time before the release of the report to prepare its defense, whose first component was summarized by George Tenet, director of the CIA while the torture program was being rolled out: “We don’t torture people,” he asserted, insisting that the CIA’s methods “saved lives.”107 Tenet refused to substantiate his claim that the CIA’s methods did not constitute torture, simply stating that he would not discuss specific methods. Nor is there any single case where it can be shown that the use of these methods saved any lives.
The second component of the CIA’s defense was to try to undermine the self-righteousness of Congress by producing a document “for official use only” (eventually released via WikiLeaks) that listed all the occasions on which leading members of Congress had been briefed by the CIA on the interrogation methods used.108 This may be true, and such hypocrisy on the part of official Washington can hardly be surprising. But it is impossible to establish exactly how much the CIA told its congressional audiences. And there are reasons to be skeptical, particularly given the report’s finding that even President Bush was kept in the dark about a lot of what was taking place.
The third part of the defense was to stress the legality of what the CIA had done. A veritable phalanx of CIA ghouls and Republican Party apologists lined up to assure a concerned public that what the CIA had done had been legally sanctioned by the Justice Department, and thus did not constitute torture.109 Here, the CIA is on more solid ground. When it initially requested a legal endorsement of what it was doing, it was told in a memo sent by Assistant Attorney General Jay Bybee to Counsel to the President Alberto R. Gonzales that the president was able in times of war to consider certain laws inapplicable. In particular, the Geneva conventions giving certain groups prisoner-of-war status, the memo argued, clearly did not apply in Afghanistan. The memo cites ample precedents from US history in which the government went to war and did not consider itself legally bound by these conventions, even if it chose to defer to them anyway. Further, the memo offers some latitude to implement torture: “If the President were to find that Taliban prisoners did not constitute POWs under article 4, they would no longer be persons protected by the Convention.”
Thus, the US could define torture in such a way as to exclude most of their measures from the definition. For something to be torture, the resulting distress had to be “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”110 As I have suggested, this interpretation—as innovative as it is—appears to be inherently plausible within the framework of the UN Convention Against Torture, which defines the pain associated with torture only as “severe,” without further stipulations.
This extraordinary memo, chiefly written by Deputy Assistant Attorney General John Yoo, was Schmittian111 in its legal doctrine of almost limitless executive power. Critics of the memo describe many of its interpretations of law as “unconventional.” In particular, its statement that the Geneva Conventions can be suspended in regard to Afghanistan, al-Qaeda, and the Taliban has generated the most forceful denunciation among legal scholars, leading to calls for its authors to be prosecuted.112
But the Bybee memo—whatever its moral status—is an example of impressive legal virtuosity. It relies on a rigorous reading of the logic of the legal axioms and of precedent. Yet the Bush administration could not wholeheartedly embrace its hegemonic considerations. While Defense Secretary Donald Rumsfeld argued that this was a new type of war, unimagined by the framers of the Geneva Conventions, Secretary of State Colin Powell considered that denying prisoner-of-war status to captives would “have a high cost in terms of negative international reaction” and “undermine public support among critical allies.”113
The Bush administration’s compromise between the two pressures was to say that prisoner-of-war status would apply to captives in Afghanistan, but not to Taliban or al-Qaeda suspects: they were “enemy combatants,” and thus excluded from protection under the Geneva Conventions. Indeed, this continued to be the basis of US policy in Guantánamo, as when State Department legal adviser John Bellinger invoked the “typical laws of war,” including the Geneva Conventions, as providing justification for detaining people “captured on the battlefield” but who have forfeited their right to communication with the outside world.114 The United States, of course, was still a signatory to the UN Convention Against Torture, but it applied the definition of torture identified by Bybee—until the Abu Ghraib scandal forced the Office of Legal Counsel to abandon it.
The CIA could thus say that it did not torture, and had not tortured, precisely because the American empire had the power to define torture legally and to impose that definition through force.115
HOW TORTURE WORKS
One of the most important criticisms of torture, made by Obama and by the Senate Intelligence Committee, is that it does not work. It is ineffective at generating actionable intelligence leads that result in lives being saved. Insofar as this is the justification for torture—that it is a defensive measure against ruthless terrorism—the critique is accurate. However, what we see in the WikiLeaks documents, and in the history of the American government’s practice of torture, is that this is not necessarily what torture is for.
It is true that interrogation is a key purpose of the torture: the desire to elicit statements, confessions, and background information. But much of this had no relevance to the Taliban or al-Qaeda, and many captives had nothing to do with these groups either. At least one detainee was interrogated for information about Al Jazeera’s journalism practices. This was partly because the United States considered Al Jazeera a hostile broadcaster. Further, even if much of the information gained from the interrogation could not be verified, it nonetheless provided the US with confessions that supported its narrative and underpinned prosecutions.
Consider, for example, the case of Khalid Sheikh Mohammed, a leading al-Qaeda member whose capture was celebrated by the CIA as a major victory. He was among a number of prisoners tortured “to the point of death,” waterboarded until he almost drowned.116 This sustained torture produced a confession so elaborate, sweeping, and implausible that it led a prominent legal expert to declare it akin to the confessions in Stalin’s show trials. Mohammed confessed to everything from the 1993 World Trade Center attack to bombings in Bali, the beheading of Daniel Pearl, and a series of plots to blow up NATO headquarters, New York suspension bridges, the Empire State building, the Sears Tower in Chicago, and London’s Heathrow Airport: thirty-one confessions in total.117
Another purpose of torture is to punish and intimidate enemies. The United States was directly involved in training the Special Police Commandos in torture techniques, and the commandos played a key role in the unfolding of the Iraqi civil war—especially the suppression of anti-occupation activity. Torture, in this case, was meant to terrorize the opposition. And this is consistent with the uses of torture by the CIA and affiliated military and paramilitary cohorts on previous fronts, such as in Vietnam, the Philippines, and Latin America.
The fact that torture “works” in this sense does not mean that it is necessarily always a good idea for the empire to engage in such practices. America’s empire has always consisted in the expansion of its dominion through the opening of markets and global trade institutions. In this, even more than in war, it needs allies. If the torture disclosures show anything, it is that there were considerable pressures from within the Bush administration and beyond not to resort to torture, as this would alienate key allies and undermine the legitimacy and long-term interests of the United States. Indeed, one of the reasons why so much information has been disclosed is a struggle between factions of the US state, in which many argued that torture was counterproductive.
But there has been no final resolution of this struggle, and the United States has still not ceased to torture: it seems likely that, as long as America is an empire, it will torture again.118 But that bind, between the normative claims attached to America’s stewardship of a liberal world order and the harsh realities of military domination, is one that has repeatedly caught its leaders out. Even as they authorize torture, they must seek to define it out of existence.