The Restless Wave

by John McCain

  He left Afghanistan after the September 11 attacks, stateless and a fugitive from an arrest warrant issued in Tripoli. Partly in response to Qaddafi’s attempted reconciliation with the West and his pledge to surrender his weapons of mass destruction, the U.S. and U.K. declared the LIFG a terrorist organization. In March 2004, Belhaj and his pregnant wife, Fatima, were transiting through the Kuala Lumpur airport on their way to London, when they were taken into custody by American intelligence agents acting on a tip from Britain’s MI6.

  Seven years later, U.S. military and diplomatic officials met with Abdel Hakim Belhaj in his capacity as the commander of the Tripoli Military Council, the provisional rebel military authority in charge of keeping order in Tripoli in the wake of the Qaddafi regime’s overthrow. He had commanded a battalion in the battle for Tripoli in late August 2011. His fighters had seen combat later than had other rebel militias in the NATO-supported Libyan revolution, especially those fighting in the east. The regime had arrested his father and brother in the early days of the revolution, and Belhaj had gone into hiding and escaped by boat to Tunisia. He arrived in Benghazi later that spring, and began organizing his militia with arms, supplies, and training provided by Qatar. They were in the fight by midsummer. His was one of the better-disciplined rebel forces, and they led the way in fierce fighting during the attack on Qaddafi’s fortified Tripoli compound, Bab al-Azizia. He was the consensus choice of the other rebel battalion commanders to take command of the Tripoli Military Council, whose members were pledged to the authority of the provisional rebel governing authority, the National Transitional Council (NTC). But the NTC hadn’t made Belhaj’s appointment, and that heightened concerns among more liberal Libyan rebel factions about the growing Islamist role in the revolution.

  It worried U.S. officials as well. The NATO intervention brought U.S. and allied air and naval power into the war in March 2011 as Benghazi was about to fall to Qaddafi, who had threatened “no mercy” to its inhabitants. The decision would be harder to justify to the American public if the revolution ousted Qaddafi only to hand power to Islamists, some of whom might have once been associated with al-Qaeda, might be suspected terrorists, might even have been detained by U.S. officials. A week after Tripoli fell, Belhaj traveled with the NTC chairman to Qatar, where they met with NATO officials, I assume for the purpose of persuading them he wasn’t a terrorist dedicated to the destruction of the West.

  I was in Tripoli in September 2011, just a month after the capital had fallen. It was a confusing situation where few effective lines of authority controlling the chaos were apparent. The tension in the capital between civilians and the dozen or more heavily armed militias operating there and between the militias themselves was palpable. When I met with NTC members, I urged them to expand the council to include political representatives for the militias operating in the city, and get them under the council’s full authority. I learned Belhaj had used his authority as head of the Tripoli Military Council to help stabilize the situation and encourage the militias to remove their heavy weapons from the city.

  I was back in Libya in February 2012, and asked to meet with Belhaj to show my appreciation for the constructive role he was playing in Libya’s political transformation and urge his continued efforts toward that end. I wanted to encourage him to make his own transition from revolutionary to politician, and assure him the United States wasn’t his enemy, and didn’t want to be. As long as he was committed to the democratic process, his religious views should not be an impediment to a good working relationship with us. This was a heady moment for political Islam. The Muslim Brotherhood, the main Islamist movement, had won power in Tunisia and Egypt. It was gaining strength in Libya and was generally ascendant throughout the Middle East. I thought it was urgently important for the U.S. to do what we could to encourage its proponents to embrace the rule of law in return for international recognition. Toward that end, and because it was owed him, I intended to offer Commander Belhaj my personal apology as an elected official of the government that was responsible for his torture.

  After Belhaj and his wife had been seized in Kuala Lumpur, they were taken to a secret facility in Bangkok, where they were interrogated by CIA agents for several days. Belhaj cannot remember for certain the exact length of their detention in Bangkok. That’s hardly surprising. He was stripped naked, and chained to the ceiling of his freezing-cold cell. He was also submerged in ice water and deprived of sleep.

  When the Americans had finished with him they rendered him to Libya. Qaddafi’s secret police held him at their headquarters prison for four years of torture and isolation before transferring him to the notorious Abu Salim prison, where he was tortured some more. He was kept in solitary confinement the entire time, six years, before the regime released him. “I was beaten, hung from the walls by my arms and deprived of food and sunlight,” he recalled recently to a Washington Post correspondent.

  I imagine the worst of it, though, was the knowledge of what the CIA interrogators had done to his wife, whom he would not see, nor the child she had been carrying, until his release from Abu Salim prison in 2010. They had taken a photograph of her in the interrogation room at the black site in Bangkok. She was seated in a chair, Americans surrounding her, duct tape wrapped around the lower half of her face, her wrists bound, and completely naked. She was six months pregnant at the time.

  I had learned of his rendition and torture from Tom Malinowski, the Washington director of Human Rights Watch, with whom I had worked in the national debate over torture and on other human rights issues. Tom was working with the rebels and advocating on their behalf. He knew Belhaj and was impressed by him. He acknowledged he was an Islamist, but believed his war had been with Qaddafi not the West. He told me Belhaj had been instrumental in keeping Tripoli from descending into violent chaos and reining in human rights abuses by the rebels. I was disturbed by Tom’s account of what had happened to Belhaj, and America’s role in it. But I had heard worse stories about our mistreatment of prisoners, and I wasn’t shocked. I learned about the photograph later, and that was a shock.

  “Shocked the conscience” was the term used to identify practices that were indisputably cruel and unusual. The CIA and certain quarters of the Bush administration used the term to raise the bar on what constituted torture in order to rationalize forms of abuse they argued did not shock the conscience. The degradation of Belhaj’s pregnant wife, for the purpose of humiliating her and her husband, shocked my conscience, and made me ashamed.

  He received us in a hotel conference room with chairs arranged in a horseshoe and Belhaj seated at the center. He had brought a couple of aides with him. Our party numbered as many as ten, including U.S. embassy personnel and four Senate colleagues. We exchanged introductions, and I took a seat just to Belhaj’s left. He was short and stocky, with a furrowed brow and erect bearing. He had a brisk and serious manner. He came across as very self-assured, having traded his combat fatigues for a dark business suit.

  He spoke through an interpreter, but the discussion flowed easily. He acknowledged concerns I raised about the situation in Tripoli. He smiled but offered no assurances when I said I hoped he would make the transition from rebel commander to politician. Libya would need more talented politicians than soldiers, I argued, in what would surely be a difficult transition from a family-run kleptocracy to a nascent democracy. His commitment and the commitment of other devout Muslims to peaceful political change would be essential to building a functioning and lasting democratic polity. “We might have disagreements between us,” I acknowledged, “about political issues and the future of the region. But as long as you’re committed to the democratic process, we can have a good relationship.”

  At the end of the meeting, in a quieter voice, I mentioned I had recently learned that Americans had detained and interrogated him using tactics that should not have been allowed and were not allowed any longer. I knew about his rendition to Libya, and the years of torture he had suffered in prison. I assume
d someone had briefed him on my military background and service in Vietnam, and I tried to relate to him as a former military officer who had entered politics and as one torture victim to another. I told him it had always been important to me that my country act honorably in war and peace, even when our enemies did not. “Some of us in the delegation have worked to outlaw mistreatment of our prisoners because it doesn’t befit a great nation.” He looked me in the eyes the entire time I was speaking, but I don’t remember him nodding his head or in any other way acknowledging my words. But when I added that I knew his wife had been mistreated, his eyes welled with tears. “I’m sorry,” I told him, “and as an elected representative of my country, I apologize for what happened, for the way you and especially your wife were treated, and for all you suffered because of it.”

  He leaned toward me and expressed through the interpreter his appreciation for the apology. “We regret all that happened,” he said, “but we don’t think of revenge. We will behave responsibly in Libya. Our actions will be governed by law and we will live up to universal standards.” I thanked him for that assurance, and the meeting ended.

  I never saw him again after our meeting. He did, in fact, become a leading Islamist politician in Libya, and, I’ve heard, quite a wealthy man. I don’t for a moment assume his views and career decisions were influenced by my brief conversation with him. He’ll have had his own reasons, political, religious, and personal, for the course he has chosen to follow. I do believe, though, that he genuinely appreciated the apology I offered him. And even if he hadn’t, he was still owed one. Neither he nor I believed the apology was compensation for our cruel, inhumane, and degrading treatment of him. It was literally the least I could do. Whatever his private feelings about the U.S., in public he maintains that his views on Libya’s relationship with the West aren’t influenced by his personal experiences with United States intelligence officers. Of course, he believes, correctly, that he is entitled to an acknowledgment that what was done to him and his wife was wrong. He filed a lawsuit against government officials in Great Britain, who appeared to have been involved in his apprehension and rendition. But all he wanted from the U.S. was an apology. Not everyone at the embassy believed he was owed one, and some weren’t pleased I had given him one. The CIA station chief took offense, insisting the Agency had nothing to apologize for. I disagreed.

  • • •

  The first formal step in the breach of American ideals was a decision by the national security principals in the Bush administration, who conferred in the spring of 2002 on the proposed “coercive” interrogation of Abu Zubaydah, a senior al-Qaeda operative captured in a shootout in Pakistan, and held by the CIA in various overseas black sites. The techniques discussed were likened to the harsh treatment U.S. military personnel were made to suffer in SERE school (Survival, Evasion, Resistance, and Escape). Prior to their decision, the principals received a memorandum signed by President Bush, prepared by White House counsel likely with guidance provided by the Justice Department’s Office of Legal Counsel. The memo was titled “Humane Treatment of Taliban and al Qaeda Detainees.” Its purpose was to offer a legal rationale for doing the opposite, to justify the inhumane treatment of captured enemies. Though the memo directed that detainees be treated humanely, it concluded that “none of the provisions” of the Geneva Conventions requiring the humane treatment of prisoners of war applied to al-Qaeda, and by inference to the Taliban, because it wasn’t a signatory to the Convention. This included Common Article 3, which requires the humane treatment of combatants detained in armed conflict other than a war between nation-states.

  After the principals approved the abusive treatment of Zubaydah, lawyers at the Department of Justice were tasked with providing additional legal justification for his aggressive interrogation. The so-called torture memos issued in August 2002 were written by the head of Justice’s Office of Legal Counsel, Jay Bybee, and his deputy, John Yoo. In addition to the methods used against Zubaydah, the memoranda sanctioned a general program of torture against known or suspected terrorists in our custody. Among other rationalizations, the memos concluded that a federal statute prohibiting torture concerned only extreme acts of abuse that caused “serious physical injury, such as organ failure, impairment of bodily function, or even death.” Further, for “prolonged mental harm” to amount to torture it must “last months or even years.” The authors further maintained that even the criminal prosecution of interrogation techniques that met their definition of extreme would be an unconstitutional infringement of the President’s authority to conduct war. They also contended “federal laws against torture, assault and maiming would not apply to the overseas interrogation of terror suspects.”

  In other words, Bybee and Yoo were arguing that the aggressive interrogation methods weren’t torture, and if they were, so what, U.S. and international law are powerless to prevent the President from ordering them anyway.

  For good measure, they provided an approved list of techniques to be used on Zubaydah that, according to their reasoning, were not torture. Among the techniques were some that were familiar to me, including stress positions and sleep deprivation. The North Vietnamese regularly employed those “techniques” on American POWs. They tied us in ropes with our arms behind our backs and stretched into quite uncomfortable stress positions. Even though the rope treatment was painful, we could, if left alone overnight as we often were, drift off to sleep for a few minutes in that position. It’s amazing what you can get accustomed to if you don’t have a choice. Of course, the guards checked us regularly and slapped us awake the moment we fell asleep. Other times, we were made to stand up for twenty-four hours or longer. It’s harder than it sounds.

  The most serious of the abuses authorized in the torture memos was waterboarding, the notorious practice where a cloth is placed over a restrained victim’s face, and water is poured into his open mouth and nose until he suffers acute panic from the sensation of drowning. The victim believes he is drowning even if he realized in advance that his torturers did not intend to kill him. He experiences near-death. To my mind, it is no different than a mock execution, which is expressly forbidden by U.S. law and international treaties we are signatories to. Waterboarding can be very painful. It can cause lasting physical and mental damage from oxygen deprivation. And, of course, if not very carefully administered, it can end up drowning the victim for real. It was used in the Spanish Inquisition, by the Japanese in World War II, and by the Khmer Rouge in Cambodia. The U.S. military is believed to have adopted the practice in the Philippine-American War, although at least one officer was court-martialed for ordering it. Waterboarding was forbidden in the U.S. military in Vietnam, and a published report of its use there resulted in the court-martial and dishonorable discharge of the guilty party. Waterboarding is torture by any reasonable definition, and its use is a stain on the honor and reputation of the United States.

  Zubaydah, who had been seriously wounded during his capture, was placed in CIA custody and held at the secret site in Thailand. An FBI team, headed by a top al-Qaeda expert, Ali Soufan, led his initial interrogation in the spring of 2002. At the time, Zubaydah was feverish, still suffering from his bullet wounds. Using traditional, humane interrogation methods to gain his confidence, Soufan and his associate managed within a few days to get him to identify Khalid Sheikh Mohammed as the mastermind of the September 11 attacks and to disclose Jose Padilla’s ill-conceived plot to build and detonate a “dirty” bomb.

  A CIA contractor, one of two psychologists who designed the CIA’s program of abuse and would be paid tens of millions of dollars for their service, arrived on the scene and took charge of the interrogations. Zubaydah was stripped naked, kept in a cold isolation cell, deprived of sleep, and bombarded with loud music. Ali Soufan’s angry objections to the abuse were disregarded. When the FBI agent noticed a small, coffin-like box had been constructed, presumably to confine the prisoner in what, considering his wounds, would be an extremely painful position, he cont
acted his superiors at the Bureau to protest that the CIA’s mistreatment of Zubaydah amounted to torture. In reaction, FBI director Robert Mueller ordered Soufan and his associate home, and terminated the FBI’s participation in detainee interrogations.

  After the torture memos were issued in August, CIA contractors really went to work on Zubaydah. Held in a succession of black sites, he was subjected to constant abuse for weeks, some reports allege for months, much of it videotaped. The abuse included beatings, long periods in the confinement box, and the CIA’s first use of waterboarding. Before they were finished with him, Zubaydah would be waterboarded eighty-three times, rendering him almost insensible. After one session, his torturers worried they had killed him. Somehow during these weeks of abuse, Zubaydah lost his left eye. A 2007 report by the International Committee of the Red Cross identified him as the only one of fourteen “high-value detainees” who had been subjected to all twelve of the enhanced interrogation techniques specified in the torture memos. After all that, and Jose Padilla’s delusion of malevolent grandeur notwithstanding, Zubaydah gave his torturers nothing that helped the Agency uncover new terrorist plots.