Actionable Intelligence -or- Terror on the war against terror

Stephan Klaschka, , ,

“Actionable intelligence” or Terror on the war against terror  (written in June/July 2004, copyrights apply)

What is the cost of a human life?

What is the cost of a human life? The question is often comes up when tough issues are discussed and the opinions clash ‑ philosophical clarity of theories and pragmatic solutions to urgent problems seem hard to unite to find the proper course to adopt.

Justice in a democratic society relies on a set of laws to prosecute offenders blindfolded and without respect of persons. This is to come to a common procedure that treats the offender objectively, fair, and humanely – quite in contrast to the victims of the offense. Thus, justice became a well established and proud practice in the Western world based on its democratic principles.

The Nuremberg trials

  • The unprecedented and –so far‑ only breach of this practice came after the Second World War with the Nuremberg Trials in 1947.

Under U.S. leadership military tribunals prosecuted Germans of the former Third Reich, the national-socialistic German regime under the rule of Adolf Hitler. Until then, an accused was not to be prosecuted under a law that was not established and effective at the time of the accused offense. The military tribunal at Nuremberg, however, concluded that the accused were guilty nonetheless and introduced the statutory offense of “crimes against humanity” that has not existed earlier. The accused were prosecuted and imprisoned or killed in consequence. For many the Nuremberg Trials could never lose the taste of a “winner’s justice” as the new “crimes against humanity” ruling was introduced and prosecuted against the losing party – never against the offenders of the winning parties.

The Dilemma

  • At Nuremberg, the accused defended themselves by claiming that it was acceptable and reasonable to sacrifice few humans for the greater good of many.

The medical trial, in particular, revealed the dilemma: The inhumane and sometimes fatal research in humans (without the subject’s informed consent; for example in concentration camps) returned results and insight in diseases, conditions, and prevention which could be applied to a larger community and allowed many other people to live.

The merits of this perspective found supporters also outside the tribunal and trigger the fundamental question once again: What is the cost of a human life? ‑ Is it expendable? At what cost?

Anyway, the defendant’s claim was denied by the –American led‑ Nuremberg military tribunal in 1947. Recently, however, it is the United States of America (U.S.) government that reinstated this very approach – in their global “war against terror”.

Gaining “actionable intelligence”

Amnesty International responded to pictures of torture by U.S. troops in Afghanistan already in January 2002. However, not until late April 2004 the broad public took notice of photographs of U.S. military personnel humiliating, torturing, and otherwise mistreating detainees at the Abu Ghraib prison in Iraq.

It surfaced that detainees were systematically tortured by U.S. personnel in the hunt for “actionable intelligence”. According to Human Rights Watch, this pattern of abuse did not result from the acts of individual soldiers who broke the rules. It resulted from decisions made by the Bush administration to bend, ignore, or cast rules aside. Administration policies created the climate for Abu Ghraib […]

  • These U.S. activities clearly contradict the Geneva Conventions of 1949 and the “Convention against Torture and Other Cruel, Inhuman Degrading Treatment or Punishment” of 1984.

But let us return to the –denied- argument by the German defendants of the Nuremberg medical trial that it was acceptable to sacrifice few for the greater good of many.

The basic idea of the argument seems to have survived and found its way right into the most recent U.S. foreign politics and sheds an interesting light on the American position in the self-declared “war against terror” that started after the terrorist attacks on the U.S. of September 11, 2001.

“There was a before-9/11 and an after-9/11,” said Cofer Black, former director of the CIA’s counterterrorism unit, in testimony to [U.S.] Congress. “After 9/11 the gloves came off.”

The systematic approach

The U.S. offenders cannot be regarded as lone operators, and the incidents surfaced so far are not isolated cases. The assault and battery are systematic. They give the events an official character and making it part of the overall U.S. strategy – very much in contrast to the public statements of the president of the U.S. and members of his administration.

The first public manifestation of a policy to circumvent normal detention rules came in January 2002, when the United States began sending persons picked up during the armed conflict in Afghanistan to its naval base at Guantánamo Bay, Cuba. Ultimately Guantánamo would hold more than 700 detainees from forty-four countries, many apprehended far from any conflict zone. Guantánamo was deliberately chosen in an attempt to put the detainees beyond the jurisdiction of the U.S. courts. Indeed, in response to a legal challenge by several detainees, the U.S. government later argued that U.S. courts would not have jurisdiction over these detainees even if they were being tortured or summarily executed.

Ignoring the deeply rooted U.S. military practice of applying the Geneva Conventions broadly, U.S. Defense Secretary Donald H. Rumsfeld labeled the first detainees to arrive at Guantánamo on January 11, 2002, as “unlawful combatants,” automatically denying them possible status as prisoners of war (POWs). “Unlawful combatants do not have any rights under the Geneva Convention,” Mr. Rumsfeld said, overlooking that the Geneva Conventions provide explicit protections to all persons captured in an international armed conflict, even if they are not entitled to POW status. Rumsfeld signaled a casual approach to U.S. compliance with international law by saying that government would “for the most part, treat them in a manner that is reasonably consistent with the Geneva Conventions, to the extent they are appropriate.” On February 7, Rumsfeld questioned the relevance of the Geneva Conventions to current U.S. military operations: “The reality is the set of facts that exist today with the al-Qaeda and the Taliban were not necessarily the set of facts that were considered when the Geneva Convention was fashioned.”

At the same time, a series of legal memoranda written in late 2001 and early 2002 by the Justice Department helped build the framework for circumventing international law restraints on prisoner interrogation. These memos argued that the Geneva Conventions did not apply to detainees from the Afghanistan war.

On February 7, 2002, in the face of growing international criticism, President Bush announced that the U.S. government would apply the “principles of the Third Geneva Convention” to captured members of the Taliban, but would not consider any of them to be POWs because, in the U.S. view, they did not meet the requirements of an armed force under that Convention. As for captured members of al-Qaeda, he said that the U.S. government considered the Geneva Conventions inapplicable but would nonetheless treat the detainees “humanely.”

These decisions essentially reinterpreted the Geneva Conventions to suit the administration’s purposes. Belligerents captured in the conflict in Afghanistan should have been treated as POWs unless and until a competent tribunal individually determined that they were not eligible for POW status. Taliban soldiers should have been accorded POW status because they openly fought for the armed forces of a state party to the Convention. Al-Qaeda detainees would likely not be accorded POW status, but the Conventions still provide explicit protections to all persons held in an international armed conflict, even if they are not entitled to POW status. Such protections include the right to be free from coercive interrogation, to receive a fair trial if charged with a criminal offense, and, in the case of detained civilians, to be able to appeal periodically the security rationale for continued detention.

Quite (in-)accurately but even more so conveniently, Guantanamo was described as a “legal black hole” by Lord Johan Steyn, a judicial member of Britain’s House of Lords.

Evading the International Criminal Court

  • “Quis custodiet ipsos custodes?” – “Who guards the guards?”

The United Nations effort of founding the International Criminal Court (ICC) in Den Haag was to end a century-long struggle for the fight against grave war crimes on an international level. 120 states agreed to the founding statute of the ICC in Rome on July 18, 1998. However, 21 states abstained and 7 even voted against the statute ‑ among them the U.S.

Hence, war crimes committed by the U.S. or its citizens cannot be prosecuted be the ICC nor is there any other authority that is similarly independent, competent, and responsible and could step in instead.

  • The U.S., thereby, have deliberately tried to create a legal vacuum for their operations without having to fear justice for their unlawful action.

Given the recent events in Guantanamo, Afghanistan, Iraq, and other countries this proves to have been a foresighted, deliberate, and comfortable decision. Also the deliberate and ordered shooting by U.S. troops of unarmed and seriously wounded Iraq soldiers (lying on the ground and surrendering as video documented by CNN and from a U.S. military helicopter) clearly prove war crimes committed by the U.S. forces – that may never be prosecuted.

  • Note – Also British offenders are accused of the torture of prisoners in Iraq. Before a prosecution by the ICC is possible, at least in theory, the national law has to be enforced first.

Dodging justice in the “War on Terror”

  • It is the official policy that ‑in the name of the higher interests of U.S. national security‑ prisoners are allowed to be tortured by U.S. forces to gain “actionable intelligence”.

Claiming the right to protect the U.S. from terror, the U.S. themselves have established a system of terror against their prisoners.

What the American position comes down to is the claim that few humans may be sacrificed for the greater good of many. A few tortured or dead acclaimed “terrorists” (many not even formally accused and none convicted by a lawful authority; women and children as young as 13 years old among the prisoners) are acceptable victims sacrificed on the altar of U.S. “national security”. – Again, a claim denied under U.S. justice by the Nuremberg trial in 1947.

Does the Nuremberg denial of the German claim still holds true? If so, is there a different kind of law applying to the U.S. for the –undeniably committed‑ “crimes against humanity” in the “war on terror”? A law other than what the U.S. introduced and applied to the convicted Nazi-Germans?

  • What is the justification of the offenses committed by the U.S. that would rule the U.S. government with impunity from torturing and killing? Wouldn’t the same “carte blanche” apply to the Nazi convicts?

As a scary thought, the question arises what makes the U.S. different from Nazi-Germany in this respect and voids from applying the “crimes against humanity” statuary offense against the U.S.?

An eye for an eye

Apparently, the U.S. government and its military have lost the insightful understanding that international treaties such as the Geneva Conventions once were signed by the U.S. to protect their own soldiers from torture and abuse when taken as prisoners in military theatres abroad.

The liberal dilution and re‑interpretation of the Geneva Conventions may easily backfire upon the U.S.: The Geneva Conventions deliberately distinguished armed forces of a party to the conflict (including soldiers, militias, volunteer corps, persons who accompany the armed forces without actually being members thereof, such as civilian members) in much detail from civilians in a clear black-or-white fashion so to avoid grey areas.

When the U.S. started introducing a grey area unilaterally by labeling prisoners in Afghanistan as “unlawful combatants” not subject to the Geneva Conventions this clearly contributed to the prisoner’s abuse.

Out contracting the war

During the “war on terror” the U.S. military has out-contracted over 10% of core military tasks ‑ more than ever before in their history.

Following the U.S. logic and terminology, this same “grey” status of “unlawful combatants” must then apply to the (estimated) over 25,000 contractors which work for the U.S. forces in Iraq. Many of these contractors are combat trained and armed to perform tasks such as securing installations and individuals or to perform in support of military operations. How could contractors from the military industry not be regarded being involved in the military action? ‑ For example, the crews that identify targets for air strikes, providing training to soldiers, or servicing military equipment.

Under the U.S. argumentation these contractors, for example, are doomed to be regarded as “unlawful combatants” by any party who wishes to choose to follow the U.S. logic and gets hold of the individuals. It opens the door widely to mistreating, abusing, torturing, and killing these people under the same rules the U.S. has put out there. Perhaps, the captors would even call it a “war against terror” – meaning the unlawful system of terror established by the U.S.!

  • With each day this unlawful U.S. procedure continues, the line gets even blurrier on who is actually to be called a terrorist and who is not. The U.S. seems to have willingly crossed this line.

(The extensive use of contractors raises the broader question of how much further the privatizing politics of the Bush administration may go and how much of a war may be “out-sourced”; this topic, however, is not to be discussed in this present context.)

Beware of a future aftermath

Clearly, the U.S. shoved back the world several decades or even centuries by annihilating international treaties that were put in place to protect all individuals. We find ourselves back in a time and state where the strong feeds on the weak and legal protection is bent and fudged as needed to serve a political purpose.

Apparently, the division of the power (legislation, politics, executive) has failed in the U.S. ‑ and with global impact.

According to Human Rights Watch, ironically, the [U.S.] administration is now finding that it may be losing the war for hearts and minds around the world precisely because it threw those rules [allowing the torture of prisoners] out. Rather than advance the war on terror, the widespread prisoner abuse has damaged efforts to build global support for countering terrorism. Indeed, each new photo of an American soldier humiliating an Iraqi could be considered a recruiting poster for al-Qaeda. Policies adopted to make the United States more secure from terrorism have in fact made it more vulnerable.

At present, the U.S. appears strong and dominating ‑ but this may change in the future. And the consequences could then hit the U.S. harder than the attacks from September 11, 2001, and even more so, as they arise from their own unlawful wrongdoing today.

  • Or to say it with the words of the philosopher George Santayana: “Those who can’t remember the past are condemned to repeat it.”

* * *

Background Information

What is “torture”?

The United Nation’s “Convention against Torture and Other Cruel, Inhuman Degrading Treatment or Punishment” defines the term “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.”

  • Hence, there can be no doubt that the U.S. treatment of prisoners comes under this definition of torture. The U.S. ratified this treaty in 1994.

In addition, the International Covenant on Civil and Political Rights (ICCPR) is the principal international treaty setting out fundamental civil and political rights for everybody. One hundred and forty nations have ratified the treaty, that is, have agreed to be legally bound by its provisions which include:

  • the right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment (Article 7)
  • the right of any detained person to be treated with humanity and with respect for the inherent dignity of the human person (Article 10)
  • the right to privacy without arbitrary interference (Article 17).

Governments are required to ensure to every person the rights recognized in the treaty without distinction of any kind, such as sex and race (Article 2). The ICCPR also recognizes that all people are equal before the law and are entitled to equal and effective protection against discrimination on grounds such as sex and race (Article 26). The prohibition of discrimination in the ICCPR and the right to privacy includes a prohibition of discrimination on the ground of sexual orientation.

The U.S. became a party to the ICCPR in 1992 but it reserved the right to refrain from implementing certain provisions or to restrict their application. For example, the U.S. government stated that the United States considered itself to be bound by the prohibition of “cruel, inhuman and degrading treatment or punishment” in Article 7 of the ICCPR only to the extent that Article 7 referred to “the cruel and unusual treatment or punishment prohibited by… the Constitution of the United States.” The U.S. government did so because the reference to “degrading treatment or punishment” in Article 7 of the ICCPR might cover treatment that would not be prohibited by the U.S. Constitution. It was not willing to prohibit conduct that was not already prohibited by U.S. law. The Human Rights Committee, a body of experts established by the ICCPR who provide authoritative guidance on the interpretation of its provisions and monitor governments’ implementation, has stated that it considers the U.S. reservation to Article 7 “incompatible with the object and purpose of the Covenant.”

As with respect to the ICCPR, the government made a reservation stating that it considered itself obligated to prevent “cruel, inhuman or degrading treatment or punishment” only insofar as the term meant the cruel, unusual or inhumane treatment or punishment prohibited by the U.S. Constitution. The U.S. was due to report in 1995 on its implementation of the treaty requirements to the Committee against Torture, which monitors implementation of the Convention. As of January 1999, it had not done so.

Examples of torture in Iraq

In its February 2004 report, the International Committee of the Red Cross (ICRC) found that “methods of physical and psychological coercion were used by the military intelligence in a systematic way to gain confessions and extract information” (emphasis added). The methods cited by the ICRC included:

  • hooding to disorient and prevent detainees from breathing freely
  • being forced to remain for prolonged periods in painful stress positions
  • being attached repeatedly over several days, for several hours each time to the bars of cell doors naked or in positions causing physical pain
  • being held naked in dark cells for several days and paraded naked, sometimes
  • hooded or with women’s underwear over their heads
  • sleep, food, and water deprivation
  • prolonged exposure while hooded to the sun during the hottest time of day.

The classified investigative military report of Maj. Gen. Antonio Taguba confirmed these findings. Taguba reported that “numerous incidents of sadistic, blatant, and wanton criminal abuses” were inflicted on several detainees. His catalogue was even longer than the ICRC’s:

  • Punching, slapping and kicking detainees; jumping on their naked feet;
  • Videotaping and photographing naked male and female detainees;
  • Forcibly arranging detainees in various sexually explicit positions for photographing;
  • Forcing groups of male detainees to masturbate themselves while being photographed and videotaped;
  • Arranging naked detainees in a pile and then jumping on them;
  • Positioning a naked detainee on a box, with a sandbag on his head, and attaching wires to his fingers, toes and penis to simulate electric torture;
  • Writing “I am a Rapist” (sic) on the leg of a detainee alleged to have forcibly raped a 15-year-old fellow detainee, and then photographing him naked;
  • Placing a dog chain or strap around a naked detainee’s neck and having a female soldier pose with him for a picture;
  • A male military police guard having sex with a female detainee (Interestingly, this was not referred to as “rape,” although the threat to forcibly have sex with male detainees was referred to as rape.)
  • Breaking chemical lights and pouring the phosphoric liquid on detainees;
  • Threatening detainees with a loaded 9-mm pistol;
  • Pouring cold water on naked detainees;
  • Beating detainees with a broom handle and a chair;
  • Threatening male detainees with rape;
  • Allowing a military police guard to stitch the wound of a detainee who was injured after being slammed against the wall in his cell;
  • Sodomizing a detainee with a chemical light and perhaps a broom stick;
  • Using military working dogs (without muzzles) to frighten and intimidate detainees with threats of attack, and in at least one case biting and severely injuring a detainee;
  • Forcing detainees to remove their clothing and keeping them naked for several days at a time;
  • Forcing naked male detainees to wear women’s underwear;
  • Taking pictures of dead Iraqi detainees.

The Reuters news agency reported that three of its Iraqi employees were detained near Fallujah in January 2004 and subjected to sleep deprivation with bags over their heads, forced to remain stress positions for long periods, and beaten. A summary of the U.S. Army’s 82nd Airborne Division’s investigation provided to Reuters conceded that the detainees were “purposefully and carefully put under stress, to include sleep deprivation, in order to facilitate interrogation.”

Outsourcing Torture

The U.S. has also outsourced torture: Detainees have been brought to other locations in Egypt, Syria, and to the U.S. airbase in Qatar. For example, some prisons in Egyptian (a country strongly criticized by the U.S. government’s most recent report on human rights) are well known for practicing torture ‑ their staff performed torture on the U.S.’s request and with U.S. personnel present.

According to Najeeb Nuaimi, Qatar’s former Minister of Justice, thousands of people were arrested in Arabian countries on request of the U.S. ‑ by far exceeding the number of detainees held in Guantanamo. Among the countries that have surrendered possible terrorists to the U.S. are Bosnia, Indonesia, and Sweden.

The two prisoners from Sweden fled Egypt and lived in Sweden with their families since 1999 and 2000 after being prosecuted in Egypt mass-convictions for supporting terrorist organizations. Knowing of and ignoring their high risk of being tortured, Swedish authorities handed the men to eight hooded U.S. intelligence officers who brought them back to Egypt ‑ where the prisoners were tortured.

Only court ruling stopped Austria and the UK from surrendering people to U.S. custody, as the courts had serious doubts in the U.S.’s promise to treat the potential terrorists humanely.

Sources

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