Recently, the question of Guantanamo was raised in an editorial of the New York Times, where the current US President Barack Obama was accused of “reversing field” regarding his decision not to veto “a military authorization bill that contains several disputed provisions about the treatment of terrorism prisoners”.[1] In the Washington Post Jonathan Turley suggested that “the US is no longer the land of the free”, pointing out that there are questions regarding among others, indefinite detention, arbitrary justice, secret evidence, war crimes, secret court and extraordinary renditions, all of them somehow linked to Guantanamo and Abu Ghraib.

In the aftermath of 9/11 and during the battles against the Taliban and Al Qaeda operatives in Afghanistan, 779 men (632 in 2002, 117 in 2003 and another 30 from 2004 to 2008)[2] were arrested and imprisoned without any legal right or representation in the US Naval Station in Guantanamo Bay, Cuba, where they were kept for indefinite interrogation. The non-application of habeas corpus on these prisoners - even American citizens - kept in a legal limbo without being characterized either as criminals or as prisoners of war, immediately posed questions regarding American observation of human rights. The very reason for their transfer to Guantanamo was avoidance of any legal challenge regarding their imprisonment.[3] As Stuart Taylor Jr suggests “by trying to sidestep the most basic legal protections for detainees at the outset, the Bush administration guaranteed years of legal wrangling”. During the interrogations, torture was used, as acknowledged by officials which include the former Vice-President Dick Cheney, while at the same time they tried to demote the use of certain “techniques” to simply “harsh treatment”. Techniques that the officials admitted that they used as standard operational procedure included sleep deprivation and, more rarely, “waterboarding”, a cruel simulation of drowning.   

Since then, President Obama, who promised the closure of the notorious detention facility before being elected, has issued two Executive Orders to “facilitate” this procedure.[4] Despite the transfer of the vast majority of the detainees to other countries for continued detention – some with alleged low human rights records – the President has proved to be very reluctant to close Guantanamo. According to the ‘Guantanamo Task Force’, 36 detainees should remain pending criminal investigations, while 48 others should remain in prison without a trial, as they are “too dangerous to transfer but not feasible for prosecution”. The rest could eventually be transferred and tried in a foreign country. 

In March 2011, the President established a new process. Detainees under the Obama administration are no longer labelled “unlawful enemy combatants”; they have become “unprivileged enemy belligerents”. Obama has agreed with the Republicans on a bill that “will make indefinite detention and military trials a permanent part of the American law”. Some of the officials who stood against this bill were the Director of the FBI, the Defense Secretary, the Secretary of State and the Attorney General. We will turn to the more obvious abuses of power under the Bush administration that the US President has chosen not to investigate shortly. But Abu Ghraib is the real scandal.

Abu Ghraib 

On April 28, 2004 during the CBS magazine show “60 Minutes II”, Dan Rather exposed what was later called the “Abu Ghraib scandal”, that is the war crimes committed by American reservists against Iraqi prisoners, men, women and children alike. The magnitude of the scandal is not confined to some disturbing pictures. According to Seymour Hersh, the repertoire of torture was reminiscent of Nazi war crimes and included the breaking of chemical lights/ pouring the phosphoric liquid on prisoners, exposure to extreme cold and extreme hot environments of naked detainees, beating (sometimes to death), raping (at least one woman, one 15-year old boy and two men sodomized with a chemical light and broom stick), sexual humiliation, intimidation with the use of dogs, leaving POW without clothes, toilet, running water, ventilation or windows for three days, arresting family members as hostages, electro-shocking and “simulated” executions. The Red Cross counted 107 juvenile victims in six American military prisons in Iraq in the first five months of 2004. On one occasion a prisoner stated that he witnessed the rape of a young boy, while an American female soldier was taking pictures. Several women detainees had “passed messages to their families imploring them to smuggle poison to them to end their lives” because they had been “disgraced”[5]. 

The three main questions that arose from these cases of human rights violation were: was it necessary? was it the norm or the exception? and how far up did the responsibility go? Starting with the latter, Abu Ghraib was characterized by the Secretary of Defense Donald Rumsfeld as “an exceptional, isolated” case. In a nationally televised address on May 24, 2004 President George W. Bush condemned the “disgraceful conduct by a few American troops who dishonored our country and disregarded our values.” The whole US Administration tried to portray the case as a clear application of the well known “Stanford prison experiment” (1971), which illustrated the natural tendency to abuse power and the illogical obedience of people to immoral orders, when they are backed by a legitimizing ideology and have the full support of trusted institutions. Furthermore, Stanley Milgram’s experiment on obedience to authority figures (1963) confirmed the amazing willingness of participants to inflict pain against their conscience, when instructed by a trusted professor to do so. Hence, the George W Bush administration “proved” that it was the power of authority that changed the simple prison guards into cruel tormentors and murderers and some local commanders who went far beyond their authority and gave unethical orders. 

However, the torture in Abu Ghraib – as well as the legal limbo and torture of the detainees in Guantanamo – “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”.[6] According to Amnesty International, “At best, the US Administration set the conditions for torture and cruel, inhuman or degrading treatment by lowering safeguards and failing to respond adequately to allegations of abuse raised by Amnesty International and others from early in the "war on terror". At worst, it has authorized interrogation techniques which flouted the country’s international obligation to reject torture and ill-treatment under any circumstances and at all times”. The director of operations of the International Committee of the Red Cross agreed,“…we were dealing here with a broader pattern and a system, as opposed to individual acts... .” 

Administration policies paved the way for Abu Ghraib in three fundamental ways: Firstly, the administration violated every notion of International Law. The United States signed and ratified the UN Convention Against Torture[7], which forbids the use of torture as well as the “cruel, inhuman or degrading treatment or punishment”. They also signed and ratified the Geneva Conventions. President George W. Bush declared on February 7, 2002 that the Conventions as far as regarded the detainees at Guantanamo were applicable only at his discretion. An amazing effort was made by senior lawyers in the Pentagon and the White House to “redefine” torture, human rights and circumvent American legal obligations. For instance, the head of the Justice Department’s Office at the time, Jay S. Bybee, wrote in a memo in August 2002, “certain acts may be cruel, inhuman or degrading, but still not produce pain and suffering of the requisite intensity to fall within proscription against torture”. As the Secretary General of the United Nations, Kofi Annan, highlighted, “Torture is not permissible when it is called something else. Euphemisms cannot be used to bypass legal obligations”. 

Secondly, until the publication of the Abu Ghraib photographs forced action, the administration disregarded all reports of detainee mistreatment as “allegations”. Soldiers and intelligence personnel accused of abuse, including all cases involving the killing of detainees, escaped judicial punishment. Even after the scandal, Brigadier General Janis Karpinski, the commanding officer in Abu Ghraib, was just demoted to colonel. Eleven soldiers were convicted mainly for dereliction of duty and no one was ever charged for the assassination or the use of torture on prisoners. The only significant sentences were those meted out to Specialist Garner who was imprisoned for 10 years and Sergeant Frederick and Private England who received a sentence of confinement for 3 years; they could not escape like the rest of the participants, because they were the “faces” in the infamous photographs, reproduced in every newspaper and magazine in the world. This does not change the fact that it was probably the most heinous cover-up of crimes in American history. Most telling - during the scandal, “when, in the midst of the worst abuses, the International Committee of the Red Cross complained to Coalition forces, Army officials apparently responded by trying to curtail the ICRC’s access”[8]. 

Thirdly, United States officials authorized the use of torture.  It is not clear which “techniques” were formally approved and which were informally encouraged. We know that “techniques including stress positions, sensory deprivation, hooding, stripping, and the use of dogs to inspire fear were requested and were approved by Secretary Rumsfeld in December 2002 "as a matter of policy"”. Other requested techniques such as death threats, exposure to cold weather or water, and inducing the perception of suffocation, could be requested on a case-by-case basis, presumably if "military necessity" was considered to demand such techniques[9]. 

Another certainty about the “abuses” is that they were the rule and not the exception. They were used systematically at Bagram and Kandahar in Afghanistan and at Guantanamo in Cuba as well as at many prisons in Iraq.[10] The following year, the New York Times obtained an official report regarding the murder of two civilian Afghan prisoners at Bagram, which was considered worse than Abu Ghraib. They had been tortured and beaten to death, as proved by autopsies. Five months after the Abu Ghraib pictures were revealed and a little while before the ‘Bagram report’, eight retired US generals and admirals wrote to President Bush noting that “no fewer than a hundred criminal, military, and administrative inquiries have been launched into apparently improper or unlawful US practices related to detention and interrogation. Given the range of individuals and locations involved in these reports, it is simply no longer possible to view these allegations as a few instances of an isolated problem”. Even the former Secretary of Defense James Schlesinger, revealed that there had been approximately 300 recorded cases of “alleged abuse” in Afghanistan, Guantanamo and Iraq, “many of them beyond Abu Ghraib. So the abuses were not limited to a few individuals…There is both institutional and personal responsibility at higher levels”.[11] 

How did it all start? 

Who bears the moral responsibility for this disgrace?  Seymour M. Hersh suggests that it all started with Rumsfeld’s order to expand a secret operation which had focused on Al Qaeda to the interrogation of Iraqi prisoners. In Guantanamo, prisoners were held without any right or representation. Furthermore, there were prisoners “lying in their own faeces” and military guards were “slapping prisoners, stripping them, pouring cold water over them and making them stand until they got hypothermia”.[12] From Lakhdar Boumediene, an innocent victim who was detained for 7 years without trial or accusation in Guantanamo, we know that for two years he had been on a hunger strike and along with the torture, he had been force-fed. This illegal operation (“Copper Green”), which expanded to Iraq, encouraged physical coercion and sexual humiliation of Iraqi prisoners in an effort to generate more intelligence.[13] Between Rumsfeld and the foot soldiers who physically committed the crimes, there was a chain of command, bearing responsibility as well. 

If the military and political leadership knew about the situation in Abu Ghraib, Bagram and Guantanamo, we next have to ask ourselves: was it necessary? Undoubtedly, the quandary of “dirty hands” (from Jean-Paul Sartre play “Les mains sales”, 1948), which refers to the compromise of certain moral principles in order to achieve a greater good, has been a controversial issue throughout history. According to Stephen Garrett “the notion of dirty hands suggest that political authorities may be required to do things – or to tolerate things – that would be regarded both by them and by others as unacceptable, even as genuinely evil, if the actions took place in their private lives”[14].  Leaders face ethical dilemmas, presented on the one hand with decent, just but ineffective options and on the other hand efficient but immoral ones. 

Actions that ignore moral standards have been justified, especially if the leader faces an imminent, clear and existential threat. Was that the case in Abu Ghraib or Guantanamo? Has the leader examined all possible alternatives before taking an immoral, yet ‘necessary’ decision? Are the long term consequences (sometimes even the imminent ones) taken into account? Is there a reasonable prospect of success or might the immoral act be in vain? Is the end that justifies the means “right” based on its effectiveness or its moral consequences? What are the long-term consequences of allowing torture, in order to get crucial (debatable) information in the “war on terror”? 

The damage in terms of accruing rage and mistrust in the Arab and Muslim world is incalculable. It is worth taking a quick look at the comments from Arab newspapers on the very next day of the scandal: “This is exactly why the US refused to join the International Criminal Court. US soldiers can commit these sorts of crimes in the serene knowledge that they won’t face justice” (Fouad Mardoud from Teshreen, Syria). “The international community should demand an urgent convening of the International Criminal Court to punish the war criminals in Iraq” (Editorial from Al-Ahram, Egypt). “Now it is obvious that the occupation was launched to humiliate the Arabs and Muslims. It was never about human rights or even regime change” (Abd al-Bari Atwan from Al-Quds al-Arabi, pan-Arab). “There goes the last justification for the Iraq war” (Musa Keilani, from Jordan Times. “Bush has proved to be a faithful heir to Saddam Hussein. The Americans are using the same rooms to exercise their sick, sadistic and inhuman behavior” (Editorial from Bahrain Tribune). 

As regards the intelligence gathered, it was both technically and tactically limited. Under such conditions, the prisoner is willing to reveal whatever the interrogator is keen on hearing, even if it is fabricated by the detainee. Moreover, as a direct result of their treatment, ex-prisoners with little self-dignity could easily choose the path of terrorism, even if they were originally innocent. Last but not least, what really matters is the perception and not the facts. The entire globe condemned both Guantanamo and Abu Ghraib and very few outside the American borders considered the cases isolated or deriving from military necessity. The use of torture led the US to a slippery slope and the recovery from the scandal will not be painless. In America it is considered a case which belongs to history; however, in the Arab world is neither forgotten, nor forgiven, especially in the light of the cover-up that followed.   

Measures that should have been immediately taken in order to restore American credibility worldwide were the conviction of war criminals either in Iraq or better by the International Criminal Court (instead impunity went on, possibly allowing more torture); the secret detention should have been abandoned (in accordance with allegations, it goes on in Afghanistan); finally, the treatment of “vulnerable” detainees (children, women and elderly) should have been differentiated to the rest of the prisoners (the excuse for not applying this measure had been the limited space of Iraqi and Afghani prisons). 

Conclusion 

History is the absolute judge of a good leader and given the circumstances morality can outweigh effectiveness and vice versa. However, very few can question the long-term deteriorating consequences of the use of torture, the disrespect for the international law, the complete lack of self-restraint, the eradication of institutions, the crossing of all “red lines”, in a word all the characteristics of the Guantanamo and Abu Ghraib scandals.

Barack Obama, a US President who tried to restore American credibility worldwide, ordered the closure of Guantanamo prison on January 29, 2009. He also ordered the suspension of all illegal CIA detention centers around the world, including Iraq and Afghanistan. He went on ordering the review of certain military trials for terror suspects. Last but not least he forbade all inhumane interrogation techniques. The President tried to keep the promises he had made during his campaigns, in the summer of 2007. 

However, Guantanamo is still there. Even if it shuts down, the spirit of Abu Ghraib is alive and kicking. No matter how good are the President’s intentions, he failed to fulfill the promises that would dramatically increase his stature. Furthermore, he capitulated to pressure and accepted the detention without charges or the right to a fair trial for many prisoners. The right to a fair trial, the right not to be detained without charges and the right not to be abused and tortured are human rights and no policy needs can circumvent these rights. The US, the former world beacon of democracy, the uncontested global leader, has been trapped by the problem of “dirty hands” and failed not only the rest of the world, but the American ideas of freedom and civil liberty.       

[1] Savage Charlie, Obama Drops Veto Threat Over Military Authorization Bill After Revisions, NY Times, December 14, 2011. http://www.nytimes.com/2011/12/15/us/politics/obama-wont-veto-military-authorization-bill.html

[2] Official number of detainees since 2002, according to Guantanamo Review Task Force, Final Report, January 22, 2010, available on line http://www.justice.gov/ag/guantanamo-review-final-report.pdf. 

[3] Memo from the Office of Legal Counsel, Possible Habeas Jurisdiction over Aliens Held in Guantanamo Bay, Cuba, December 28, 2001.  http://www.torturingdemocracy.org/documents/20011228.pdf 

[4] Executive Order 13492, Review and Disposition of Individuals Detained at the Guantanamo Bay Naval Base and Closure of Detention Facilities, 74 Federal Register 4897 and Executive Order 13491, Ensuring Lawful Interrogations, 74 Federal Register 4893, both issued on January 22, 2009.

[5] Seymour M. Hersh, Chain of Command (New York: Harper Collins Publishers, 2004), p. 44 

[6] Human Rights Watch Report, The Road to Abu Ghraib, June 2004. Available on line http://www.hrw.org/en/reports/2004/06/08/road-abu-ghraib 

[7] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, U.N. Doc. A/39/51 (1984) http://www1.umn.edu/humanrts/instree/h2catoc.htm

[8] Ibid Human Rights Watch Report. http://www.hrw.org/en/reports/2004/06/08/road-abu-ghraib

[9] See William J. Haynes, Action memo for Secretary of Defense, Counter-Resistance Techniques, November 27, 2002. http://en.wikisource.org/wiki/Haynes_Memo_of_Nov_27,_2002 Also see the Memo for the Commander, US Southern Command, Counter-Resistance Techniques in the War on Terrorism, April 16, 2003. http://www.defenselink.mil/news/Jun2004/d20040622doc9.pdf

[10] Ibid Amnesty International Report, See Chapter II http://www.amnesty.org/en/library/info/AMR51/146/2004/en

[11] James R. Schlesinger (Chairman), Final Report of the Independent Panel to Review DoD Detention Operations, August 2004, p. 5 news.findlaw.com/wp/docs/dod/abughraibrpt.pdf

[12] Ibid Seymour M. Hersh, Chain of Command, p. 11-12. 

[13] Seymour M. Hersh, The Gray Zone, article from The New Yorker, Vol 80, Issue 13, May 24, 2004,  p. 38 http://www.newyorker.com/archive/2004/05/24/040524fa_fact 

[14] Stephen A. Garrett, Political Leadership and ‘Dirty Hands’: Winston Churchill and the City Bombing of Germany, from Cathal J. Nolan (ed), “Ethics and Statecraft” (Westport: Praeger, 2004), p.59.