The Counterrevolution

by Bernard E. Harcourt

  The Janus face of torture was its formal legality amidst its shocking brutality. Many of the country’s best lawyers and legal scholars, professors at top-ranked law schools, top government attorneys, and later federal judges would pore over statutes and case law to find legal maneuvers to permit torture. The felt need to legitimate and legalize the brutality—and of course, to protect the officials and operatives from later litigation—was remarkable.

  The documents known collectively as the “torture memos” fell into two categories: first, those legal memos regarding whether the Guantánamo detainees were entitled to POW status under the Geneva Conventions (GPW), written between September 25, 2001, and August 1, 2002; and second, starting in August 2002, the legal memos regarding whether the “enhanced interrogation techniques” envisaged by the CIA amounted to torture prohibited under international law.

  The first set of memos, dealing with the Geneva Conventions, ultimately led President Bush to declare, on February 7, 2002, that the GPW did not apply in the conflict against Al Qaeda. Secretary of State Colin Powell had previously asked President Bush to reconsider that conclusion, arguing that the GPW should apply.19 In the ensuing exchange, it became clear that one of the principal concerns within the administration was whether the president or other US officials were opening themselves up to criminal liability for violating the GPW.

  Alberto Gonzales, then White House counsel, made this concern clear. In his recapitulation of the pros and cons of changing views on the GPW, Gonzales focused on the risk of prosecution. Sticking with the view that the GPW did not apply, he argued,

  substantially reduces the threat of domestic criminal prosecution under the War Crimes Act (18 U.S.C. 2441). […] It is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441. Your determination would create a reasonable basis in law that Section 2441 does not apply, which would provide a solid defense to any future prosecution.20

  Secretary Colin Powell also emphasized that his proposal to apply the GPW would not entail “any significant risk of domestic prosecution against US officials.” President Bush ultimately denied GPW status to the detainees, but ordered that they would nevertheless be treated humanely. The problem of the “rogue prosecutor” loomed large in the torture memos.21 The president, his cabinet, and closest advisers were trying to ensure that they would never be prosecuted or that they would have a defense in case they were prosecuted for violating the ban on torture. The extensive legal back and forth would have been offered to prove that these officials were trying to comply with the law. And after the publication of the Senate torture report revealed the use of certain extreme forms of torture (such as “rectal rehydration”), John Yoo, who had been at the Office of Legal Counsel and authored several of the torture memos, stated he was not aware of that type of torture being used and that it would probably violate the prohibition on torture. This defensive maneuver was precisely the kind of protection sought and provided by the legal documentation.

  The next set of memos concerned the use of torture. These memos began immediately after the first wave, on February 26, 2002, and reached a climax during August 2002. The timing is important. The Senate torture report reveals that Zubaydah was being waterboarded in August 2002, and other reports suggest he was being tortured earlier in the summer. These torture memos were being written to justify practices that were already taking place. They justified torture by setting the threshold of torture so high that protections would only trigger in the case of extreme physical abuse with specific intent to cause death or organ failure. As Jay Bybee, then at the Office of Legal Counsel and now a federal judge, wrote in his August 1, 2002, memo:

  We conclude that torture as defined in and proscribed by [18 US Code] Sections 2340-2340A, covers only extreme acts. Severe pain is generally of the kind difficult for the victim to endure. Where the pain is physical, it must be of an intensity akin to that which accompanies serious physical injury such as death or organ failure. Severe mental pain requires suffering not just at the moment of infliction but also requires lasting psychological harm, such as seen in mental disorders like post-traumatic stress disorder. […] Because the acts inflicting torture are extreme, there is significant range of acts that though they might constitute cruel, inhuman, or degrading treatment or punishment fail to rise to the level of torture.22

  This definition of torture was so demanding that it excluded the brutal practices that the United States was using. It set the federal legal standard, essentially, at death or organ failure.

  By October 2002, the interrogation teams were asking for permission to use methods including waterboarding—“Use of a wet towel and dripping water to induce the misperception of suffocation”—and other forms of generally recognized torture. Secretary of Defense Donald Rumsfeld approved a number of techniques on December 2, 2002, adding, in a handwritten note, that he himself stands eight hours a day. By the time Rumsfeld finally approved a longer list of techniques on April 16, 2003, they were twenty-four in number and were written in such a way as to seem innocuous. Gone also is waterboarding.23 They resembled more the type of forensic interrogation techniques discussed in Miranda v. Arizona, or in the infamous police interrogation manuals of the time. The Senate torture report, however, documents the unusually brutal ways in which they were actually implemented.

  The turn to legality and legal process—the turn to the most legalistic treatment at the highest levels of United States law making, including the attorney general and the Office of Legal Counsel—is telling. The authors of the torture memos were not military officers improvising on the field of battle under hostile gunfire. Nor were they under the pressure of a ticking time bomb.24 Instead, they participated in a slow, bureaucratic, deliberate legal negotiation, fully reasoned, regarding the government regulation of prohibited conduct at a time when a deep international consensus—including international treaties and customary law—held that actions like waterboarding would violate sovereign responsibilities.

  None of it is unprecedented, of course. In fact, for centuries torture was fully legal and deeply regulated—both inquisitorial torture to gain information and punitive torture for corporal or capital punishment. The history of the oversight and minute regulation of torture—state sanctioned at the highest level—goes far back. The Justinian Digest codified the strict regulation of the use of torture on slaves and served as a model to later codifications during the early Middle Ages and to the practices of the Inquisition. A good illustration of the latter, for instance, is the methodical and meticulous recitation of waterboarding—the toca, the classic, definitional form of torture during the Spanish Inquisition—at the formal inquisition of Marina González in Toledo in 1494, as reported by the notary at trial. This interrogation would typically have occurred in a separate, secret chamber, where only Marina González, the inquisitor, and the notary would be present. Here is a literal translation from the fifteenth-century archive:

  She was stripped of her old skirts and put on the rack, and her arms and legs were tied tightly with cords. She also had a cord tied tightly around her head. They put a hood in front of her face, and with a jar that held three pints, more or less, they started to pour water down her nose and throat.

  […]His reverence ordered her to be given water until the three-pint jar ran out; she never said a word. […] They tied her up again and began to give her more water from the jar, which they had refilled […]

  They gave her more water, and she said that she would tell everything, for Holy Mary’s sake.25

  These practices were highly regulated and limited, but fully codified in law and supervised by magistrates during the Inquisition. They were also tame compared to the practices in the new millennium.

  The torture memos effectively tried to replicate this legal framework, but it did so in a unique manner. Instead of officially codifying the practices—which would have been impossible given the treaties an
d laws on the books and customary international law—the executive branch assumed a quasi-judicial function. The Bush administration formed itself as a minijudiciary, with legal briefs going back and forth, legal arguments, and pretend judicial opinions. It “legalized” the practices by constituting itself as its own judicial system.

  Through the process of legalization, the president’s men appropriated the judicial function. The lawyers at the White House and departments of justice, state, and defense filed briefs with each other, trying to persuade each other, contesting but ultimately deciding the questions at issue: they rendered judgment. The memos became “legal briefs”—in fact, it says so on many of them26—and then, effectively, judicial opinions. The executive branch became a minijudiciary, with no effective oversight or judicial review. And in the end, it worked. The men who wrote these memos have never been prosecuted nor seriously taken to task, as a legal matter, for their actions. The American people allowed a quasi-judiciary to function autonomously, during and after. These self-appointed judges wrote the legal briefs, rendered judgment, and wrote the judicial opinions that legitimized these brutal counterinsurgency practices. In the process, they rendered the counterinsurgency fully legal. They inscribed torture within the fabric of law.

  One could go further. The torture memos accomplished a new resolution of the tension between brutality and legality, one that we had not witnessed previously in history. It was an audacious quasi-judicial legality that had rarely been seen before. And by legalizing torture in that way, the Bush administration provided a legal infrastructure for counterinsurgency-as-governance more broadly.

  In this sense, it is illusory to draw distinctions, as contemporary counterinsurgency theorists do, between good and bad forms of modern warfare—between what are referred to as the “kill-capture” or “win-the-population” approaches, between the “enemy-centric” and “population-centric” strategies, or even between President Bush’s “war on terror” and the newer “global war on terror” (GWOT).27 These variations are all simply different versions of the counterinsurgency paradigm, revolving around the same three central strategies.28 Some parts of that paradigm are more enemy-centric, such as extracting information through brutal means and eradicating the active minority. Other pieces of the paradigm are more population-centric, such as total information awareness and winning the hearts and minds. But they do not represent distinct models of warfare, just variations on the theme of the counterinsurgency model. And the Bush administration’s turn to legality created a legal prototype for the counterinsurgency paradigm to become a form of governing—to unleash its political nature.

  Ultimately, turning torture into this legal practice—outside the formal legal system but regulated by this new quasi-judiciary—loosened all the constraints: torture began to pervade the liminal spaces and to exceed the bounds of mere extraction of information. Abu Ghraib, black sites, Guantánamo—these spaces became places of torture, not only in the interrogation rooms, but through the solitary confinement, the horrid conditions, even the ordinary custodial measures.29 The entire spaces filled up with torture as torture became the new legal norm.

  And through this process of legalization, these broader torturous practices spilled over into the second prong of counterinsurgency: the eradication of an active minority. Torture began to function as a way to isolate, punish, and eliminate those suspected of being insurgents.

  4

  INDEFINITE DETENTION AND DRONE KILLINGS

  “MP, SIR, I CANNOT BREATHE!… MP, SIR, PLEASE,” MOHAMEDOU Slahi begged, as he was transported from Bagram Air Base in Afghanistan. With a bag over his head, a mask over his mouth and nose, strapped tightly around the stomach by a belt fastened to his straight-back seat, shackled by the hands and feet to his waist, Slahi could barely breathe. He thought he was going to die, smothered by the security measures imposed for transportation. “Now I couldn’t endure the pain,” Slahi recounted in the 466-page manuscript he handwrote in his Guantánamo prison cell in 2005.1 Written to serve as a legal chronicle for purposes of a habeas corpus challenge, the manuscript was subsequently published for a general readership under the title Guantánamo Diary.

  This particular ordeal was not another CIA interrogation scene, though it surely was torturous. “I felt I was going to die. I couldn’t help asking for help louder. ‘Mister, I cannot breathe…,’” Slahi writes. “‘I cannot breathe!’ I said, gesturing to my nose.”2 Slahi was being transported to the prison camp at Guantánamo for an indeterminate period of detention. He would remain at Guantánamo from 2002 to October 2016 without ever being tried, convicted, or sentenced. Treated as an “enemy combatant” in an undeclared war on terrorism, Slahi was now incommunicado. While at Guantánamo, he would be tortured, placed in solitary confinement, beaten and humiliated, and taken out to sea on a helicopter for a mock execution.

  Indefinite detention at Guantánamo served as one of two principal strategies to eradicate the active minority. The use of drone strikes was the other—both entirely consistent with the dictates of counterinsurgency theory. With the transition from the Bush to the Obama administration, we observed a distinct shift in emphasis from the first to the second. But that did not suggest a weakening of counterinsurgency’s influence. If anything, drone strikes represented counterinsurgency’s deepening hold over American foreign policy.

  The second prong of counterinsurgency theory—to eliminate the active minority—was first accomplished right after 9/11 by the capture and indefinite detention of suspects in black sites, American prisons abroad, and Guantánamo Bay camp. Indefinite detention in isolation for months is in itself a form of torture, of course; but it is also an effective way to eliminate people. A particularly torturous way to do so, from start to finish.

  Mohamedou Slahi’s account is chilling. Eight months in complete isolation, the beatings, the sleep deprivation, the colored blinkers, the ear-piercing music—and then over a dozen years of indefinite detention. One of the more striking features of Slahi’s account is precisely how torturous even the ordinary moments and day-to-day treatment were. We already encountered in the last chapter the extreme brutality—the waterboarding, the coffin-sized boxes, the isolation. But the other, more banal custodial experiences were also deeply brutalizing.

  In the everyday moments, the routinized security measures turned violent. The devices of restraint—the handcuffs and ankle-cuffs that dug into the skin, the chains on the waist, the straight chair, for hours and hours, the fellow inmate who accidentally or carelessly yanked the chain, driving the metal cuffs into one’s bones. The inability to change position, the numbing, the tingling, the limbs that fell asleep, for hours. These too became torturous. “A guard appeared and took the mask off my nose,” Slahi tells us. “I took a deep breath and felt really relieved. But to my dismay, the guard put the mask back on my nose and mouth. ‘Sir, I cannot breathe… MP… MP.’ The same guy showed up once more, but instead of taking the mask off my nose, he took the plug out of my ear and said, ‘Forget about it!’ and immediately put the ear plug back. It was harsh […] I was panicking, I had just enough air, but the only way to survive was to convince the brain to be satisfied with the tiny bit of air it got.”3

  There is a numbing quality to Slahi’s account—perhaps the indefiniteness of time and torture themselves becomes numbing. Perhaps becoming numb is the only way to bear it. A chronology, a log—a chronicle of abuse, an obscene list of gratuitous violence:

  By now the chains on my ankles were cutting off the blood to my feet. My feet became numb. I heard only the moaning and crying of other detainees. Beating was the order of the trip. I was not spared: the guard kept hitting me on my head and squeezing my neck against the rear end of the other detainee.4

  The indefinite detention and brutal ordinary measures served as a way to eliminate these men—captured in the field or traded for reward monies, almost like slaves from yonder. The incommunicado confinement itself satisfied the second prong of counterinsurgency th
eory.5 But somehow it also reached further than mere detention, approximating a form of disappearance or virtual death. The conditions these men found themselves in were so extreme, it is almost as if they were as good as dead.

  Reading Slahi’s numbing descriptions, one cannot help but agree with the philosopher Giorgio Agamben that these men at Guantánamo were, in his words, no more than “bare life.”6 Agamben’s concept of bare existence captures well the dimensions of dehumanization and degradation that characterized their lives: the camp inmates were reduced to nothing more than bare animal existence. They were no longer human, but things that lived. The indefinite detention and torture at Guantánamo achieved an utter denial of their humanity.

  Every aspect of their treatment at black sites and detention facilities reinforced this notion of bare life: not just the torturous physical and psychological methods that reduced them to their bodies only, not just the coffin-sized boxes and waterboards, but the fact that their bodies would have been anonymously cremated; that the president did not even need to be briefed about them; that the black sites were geographically located to avoid US court jurisdiction; that the tortured detainees would remain incommunicado for the remainder of their lives, never again to have significant contact with others. All these practices evacuated their humanity, excluded them as humans, wiped them off the face of the earth. Indefinite detention was a method to eliminate them.

  Since then, a large number of Guantánamo prisoners have been deported to foreign countries under strict security agreements with foreign governments that are intended to ensure their continued surveillance and monitoring. Some have been prosecuted in their countries upon return. Some are now held in prisons abroad. For the most part, their lives have been shattered and destroyed—even those who are now free have effectively been eliminated.7