War crimes, torture and impunity

Barack and Michelle Obama will surely see The Report and remember the hope sparked by his first day as the president who promised he would close Guantanamo.

Victoria Brittain
11 January 2020, 9.15am
Annette Bening as Senator Dianne Feinstein who called for an investigation of the CIA’s Detention and Interrogation Program.
Screenshot: The Report trailer, 2019.

After more than 18 years of the US war on terror there are still 40 prisoners in Guantanamo Bay in Cuba, guarded by 1,800 US soldiers and an additional 800 civilian workers in place. Five of these prisoners have long since been cleared for release by US agencies including the FBI, the military and the State Department.

Those are among 28 men who have never been charged with any crime. Twenty seven of the 40 were among the 119 men who suffered years of documented torture in CIA clandestine prisons in countries from Thailand to Lithuania, Poland and Romania, or in the prisons of US allies including Jordan, Egypt and Morocco.

These prisoners will remain in limbo for as far as they can see. That quality of detention – indefiniteness – has its own cruel effects, physically and psychologically. “I have become a body without a soul, I don’t belong to the world of living creatures,” wrote one of them, Zaher Hamdoun.

A Hollywood movie

In 2013, after years of stagnation under the Obama administration, a prison-wide hunger strike put Guantánamo back on the public radar. Could a Hollywood movie now do that again?

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These prisoners were tortured in the unthinkable sadistic ways that have been documented in scores of books, reports and testimonials. Now the remarkable movie, The Report, with fine performances from Adam Driver and Annette Bening, should spark fresh outrage, shame, and determination to see an end to this chapter of illegality. Above all, there has to be a reckoning and an end to the impunity of so many powerful men, and at least one key woman, now heading the CIA, who is a composite, but utterly recognisable character in the film.

“To prevent torture, we must prosecute torturers. It’s that simple,” wrote Vincent Warren nearly five years ago. Warren is Executive Director of the Centre for Constitutional Rights whose lawyers have worked for nearly two decades to uphold national and international law against successive US administrations bent on flouting it in the cases of these Muslim men.

Crisis of accountability

The Report’s director, Scott Z Burns, speaks of the film as showing “the crisis of accountability… a struggle for the oversight role of Congress against the executive, which is an existential crisis for democracy.”

He speaks too of CIA director Gina Haspel as one of two US officials responsible for destroying the video-tape evidence of interrogations which featured CIA torture by water-boarding in Thailand, and for obstructing justice. “The very same congressional committee which spent seven years to produce the 7,000 page report on the CIA’s torture programme, then agreed to confirm Haspel as head of the CIA,” he says, with mock astonishment.

After the detailed research which went into making this devastating film, none of those concerned has any illusions of the lengths the Bush and Obama White House staff, CIA, and every big player associated with them went to in order to cover up the illegalities the members of their team carried out.

Haspel’s appointment may seem the most egregious, but it is surely matched by the appointments, as a judge and as a professor of law at Berkeley respectively of Jay Bybee and John Yoo, who as White House legal counsel were responsible for the infamous Torture Memorandums which redefined what torture is, overriding international law and authorising the CIA torture programme. (15 years ago Cambridge University Press published them all in a 1,250 page book edited by Karen J Greenberg, Director of the Centre on Law and Security at New York University School of Law, and Joshua L. Dratel, President of NY State Association of Criminal Defence Lawyers. Here is the systematic path suspending America’s obligations to comply with the Geneva Conventions, to an imperial presidency of powers outside accepted and legal norms.)

Here is the systematic path suspending America’s obligations to comply with the Geneva Conventions, to an imperial presidency of powers outside accepted and legal norms.

Torture by any other name

Enhanced Interrogation Techniques, as the torture was called, consisted of 12 procedures and was intended to break men down to helplessness. It did. The programme was the brain child of two psychologists, John Bruce Jensen and James Mitchell, with no previous experience of counter-terrorism or the Arab world and who were paid $80 million and assured of total indemnity. Speaking to Esquire’s Jack Holmes in November 2019, Senate staffer Dan Jones, the key man behind the Senate report said of the two, “They were really introduced to the counter-terrorism program through a CIA lawyer whose wife happened to work in the area where they housed psychologists at the CIA and she just happened to say to him, ‘Hey, I know these two guys, they wrote a paper.’ And within 48 hours they’re basically giving the instructions on how to interrogate Zubaydah. I mean, no other vetting. And these guys were considered jokes in their own community.” Mitchell participated as Abu Zubeydah was water-boarded 83 times in a month and the scenes video taped.

Two years’ work by Jones (played by Adam Driver) working for Senator Dianne Feinstein (Annette Bening) went into investigating the destruction of the video tapes, and five more years of working through the CIA’s own paperwork around Enhanced Interrogation, went into this report. Obstructions included the team of black clad CIA staff who broke into Jones’s team’s office seizing paperwork, and the CIA hacking of the Senate computers. The film shows Jones/Driver in the Senate on the day the final report was delivered, despite every effort by the CIA to make sure it never was. He feels then as Burns put it, “it was the most important thing in the world.”

And, so it was. The CIA power brokers and their allies immediately went to work to ensure that only a 500 page summary could be released, and that was redacted strenuously. Former CIA chiefs Michael Hayden and John Brennan dominated the media coverage to downplay any importance. President Obama put one full copy in the Presidential library, eight were distributed to top officials, but have never been publicly discussed as Senator Feinstein pleaded, and all the rest were seized by the incoming Chair of the Senate Intelligence Committee, Republican Richard Burr.

Public airing

The film was shot in 26 days, Burns aided by Dan Jones himself, and two lead actors who could not have been a better fit for the project. Bening had already read the summary Senate report before she even saw the film script and came in with an extraordinary level of preparedness; Driver, a former Marine, interested by the nature of duty and the nature of established protocols, was perfect for Jones’ years of personal sacrifice and dogged, meticulous work against ruthless obstruction.

All these characters in the film: Jensen, Mitchell, Haspel, Hayden, Brennan, and Denis McDonough – President Obama’s second White House Chief of Staff – and others, can see on screen their work get a public airing – as a product of “executive hubris and animus,” as Baher Azmy, CCR’s legal director and a Guantanamo lawyer for years, once put it.

He described Guantanamo Bay “as the crown jewel of the imperial Bush–Cheney ‘war on terror,’ and all the corresponding chaos, incompetence, cruelty, and illegality that attended the era. Bush administration officials chose this naval station – expropriated from Cuba nearly 100 years earlier – for detention operations specifically in order to avoid the jurisdiction of U.S. courts and therefore – in a dramatic break from historical military practice – deny the 790 men and boys brought there the protections of any law.”

The most distinguished academic and practicing lawyers in the US fought the Bush administration from Day 1 of the creation of Guantanamo, which Harold Koh, Dean of Yale Law School called, “a stain upon our law and our national reputation.” The litany of cases thrown out by one court or another in the US, including the Supreme Court, have covered everything from habeas corpus; the right to a hearing in a federal court; families, like those of Ali al-Salami, Mani al-Utaybi and Yasser al-Zahrani, seeking information about their sons’ deaths in Guantanamo in June 2006, which much evidence shows were not suicide as “asymmetric warfare” as the authorities claimed; 23 US lawyers with clients in Guantanamo requesting records of National Security wiretapping of their discussions with clients. Cases have been filed in Germany, France, Canada and Spain by CCR under ‘universal jurisdiction” against some of those responsible, such as Bush himself and Defence Secretary Donald Rumsfeld, so far without success. The International Criminal Court is currently trying, against US opposition, to open an investigation into war crimes in Afghanistan.

Daily reality

All that law is far away from the daily reality in Guantanamo now of men like Sharqawi Al-Hajj, a 46 year old from Yemen, tortured in Jordan and in a CIA prison in Afghanistan, and one of the men held without charge. Two years ago, Sharqawi wrote, "It has become our destiny now to die without being guilty of any wrongdoing, knowing that even death, which could relieve us from this injustice and this suffering, is unreachable to us. Here we are dying slowly under continuous psychological torture while the world is watching." Since then his mental and physical state has seriously deteriorated as hunger strikes and his torture history take their toll. Last summer for the first time he told his lawyer he wanted to take his own life.

Perhaps Sharqawi’s guards and lawyers will tell him about a Hollywood film where Adam Driver and Annette Bening are still fighting the battle for an acknowledgment of his cruel suffering as US war crimes, and for an end to the cover ups and impunity which have kept justice from him. In 2004 the British prisoners then in Guantanamo had a burst of hope when they heard from their guards that they and their families were on stage in New York in a play called Guantanamo ‘Honour Bound to Defend Freedom,’ (which I co-wrote with Gillian Slovo).

Barack and Michelle Obama will surely see The Report and remember the hope sparked by his first day as president who promised he would close Guantanamo. With all his eloquence Obama is the one person who could give hope now to Sharqawi and so many others whose lives have been ruined, or lost, by his decision to look forward and close the door on the past. A public acknowledgment of The Report’s importance by these two lawyers would be an act of grace.

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