The Constitution, War Crimes & Guantanamo Justice

by Alan Shapiro

To the Teacher

What interrogation techniques of terrorist suspects should U.S. law allow? On April 9, 2008, ABC News reported that White House senior advisors have had repeated, detailed discussions about this question. In fact, the question has been at the center of mostly secret Bush administration discussions since 9/11.

The first student reading below provides a limited overview of the Bush administration's decision to be limited as little as possible by the Constitution, domestic laws, and international treaties when it comes to interrogating suspects. The second reading provides some background for the coming trials of a small number of the Guantanamo prisoners. Discussion questions and other student activities follow.

See the following for additional student materials on the issues raised here: "A Controversial New Law for Terror Suspects" deals with the Military Commissions Act of 2006; "Presidential Power: Guantanamo's 'Enemy Combatants'" provides more detail on the Guantanamo detainees; "Torture and War Crimes: The US Record in Documents" is a documented sourcebook on a very unpleasant but very significant issue. All are available in the high school section on this website, www.teachablemoment.org.

Student Reading 1:
A five-year-old torture memo and high-level torture discussions

Inflicting pain on captives will not be considered torture unless it causes "death, organ failure or permanent damage." The interrogator must also have torture as his "precise objective." So concluded the US Justice Department in a March 2003 memo it sent to the Pentagon.

While the general contents of this memo have been known for some time, only this April were all 81 of its pages released publicly. The memo was prepared by John Yoo, who worked in the Justice Department's Office of Legal Counsel, the executive branch's highest authority on the interpretation of US law. The memo asserts the legal opinion that President Bush, as commander-in-chief in wartime, has virtually unlimited powers that are not subject to control by the Congress, the Supreme Court or any other agency of the US government.

The United States is party to such international agreements as the Third Geneva Convention and the UN Convention Against Torture as well as such domestic laws as the US War Crimes Act of 1996, which defines a "war crime" as "a grave breach" in the Geneva conventions, or any convention to which the United States is a party. The Third Geneva Convention states: "No physical or mental torture, nor any other form of coercion may be inflicted on prisoners of war to secure from them information of any kind whatever."

But the 2003 memo asserted "that numerous laws and treaties forbidding torture or cruel treatment should not apply to US interrogations in foreign lands because of the president's inherent wartime powers." (www.washingtonpost.com, 4/1/08) And so, those laws and treaties do not apply at Guantanamo, Cuba, the US military base where hundreds of Al Qaeda suspects were brought.

Cuba was required in 1903 to lease Guantanamo to the US before American troops would leave their country following the Spanish-American War. The Justice Department and President Bush agreed with the memo's assertion that Guantanamo is "outside the United States" because of Cuba's "ultimate sovereignty" over Guantanamo. (Webster's defines ultimate as "basic, fundamental" and sovereignty as "supreme power, freedom from external control.") Cuban leader Fidel Castro requested years later that the US return Guantanamo Bay to Cuba. US presidents ignored the request. None, including President Bush, have explained what meaning they give to the term ultimate sovereignty.

The Bush Administration has consistently argued that the Geneva Convention protections for "prisoners of war" do not apply to those suspected of terrorism, because the "war on terror" is not a conventional war. Prisoners are called "enemy combatants" (a term not recognized in international treaties) and suspects held indefinitely.

According to the memo, President Bush can also ignore the Fifth Amendment to the Constitution, which declares "no person shall be deprived of life, liberty, or property without due process of law" as well as the Eighth Amendment, which bars the infliction of "cruel or unusual punishments."

Nine months after the Pentagon received the memo, the Justice Department told the Defense Department to stop relying on it and publicly declared torture "abhorrent." But in February 2005 the department secretly endorsed "the harshest interrogation techniques ever used by the Central Intelligence Agency." (New York Times, 10/4/07)

These interrogation techniques have included:

• Head-slapping
• Exposure to extremes of heat or cold for hours
• Forced nudity
• Stress positions
• Threats with dogs
• Threats of execution
• Threats to rape a detainee's wife or daughter
• Waterboarding
• Electric shocks
• Sleep deprivation
• Pepper spray
• Sexual humiliation and abuse
• Stomach beatings with head under water
• Suspension and chaining by arms from a ceiling

Specific details of CIA "enhanced interrogation techniques" were demonstrated, described in detail, discussed and approved during 2002-2003 by top US government officials meeting in the situation room at the White House. The Justice Department then endorsed the techniques. Those present included Vice President Dick Cheney, then National Security Advisor (now Secretary of State) Condoleezza Rice, former Secretary of State Colin Powell, former Defense Secretary Donald Rumsfeld, former Attorney General John Ashcroft, and former CIA Director George Tenet. The group considered such subjects as whether suspects could be "deprived of sleep or subjected to simulated drowning, called waterboarding."

Following one meeting, Attorney General Ashcroft reportedly said, "Why are we talking about this in the White House? History will not judge this kindly."

President Bush said of top-level meetings, "I'm aware our national security team met on this issue and I approved." In September of 2006 the president said, "I can say that questioning the detainees in this program has given us the information that has saved innocent lives by helping us stop new attacks here in the United States and across the world."(www.abcnews.go.com, 4/9 and 4/11/08)

On March 8, 2008, the president repeated this view when he vetoed a bill to limit CIA interrogation techniques like waterboarding. Senator John D. Rockefeller disagreed: "As chairman of the Senate Intelligence Committee, I have heard nothing to suggest that information obtained from enhanced interrogation techniques has prevented an imminent terrorist attack."

President Bush has declared frequently his opposition to torture. "Torture is wrong no matter where it occurs." (6/24/04) "Torture is never acceptable." (1/27/05) "We don't believe in torture." (3/16/05)

But what is torture? The UN Convention Against Torture (ratified by US, 1994) says that "…torture means 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… information or a confession…."

"When the abuses at Abu Ghraib became public, we were told these were the depraved actions of a few soldiers," said a New York Times editorial in April 2008, after the entire Justice Department memo was released. "The Yoo memo makes it chillingly apparent that senior officials authorized unspeakable acts and went to great lengths to shield themselves from prosecution." (New York Times, 4/4/08)

For discussion

1. What questions do students have about the reading? How might they be answered?

2. Should the president have unlimited powers for the special circumstances that war requires for the duration of the war on terror? Before answering this question, discuss the following issues: a) Who will determine when the war on terror is over and on what basis? b) What special circumstances do you think should allow for unlimited presidential powers? c) Should the president's unlimited powers permit him to override all constitutional checks on his powers? If so, state what those checks are and discuss the possible or likely consequences of removing them.

3. Which, if any, of the listed interrogation practices would you regard as torture? Why?

4. Considering that 9/11 was fresh in everybody's memory in 2002 and the imminent danger of another terrorist attack seemed very real, do the White House meetings on interrogation techniques seem appropriate to you? Why or why not?

5. Why do you suppose that President Bush has never explained the meaning he gives to the word torture? What meaning would you give to that word? How satisfactory is the UN definition? How would you define it?

6. Do you agree with the Times' editorial comment? Why or why not?

7. Do you think that Guantanamo Bay is U.S. territory? Why or why not? What are the practical consequences of either answer?

Student Reading 2:
Bringing terrorist suspects to justice

A trial for Salim Ahmed Hamdan, a driver for Osama bin Laden, is scheduled for May 28 at Guantanamo Bay. He may be the first of about 15 "detainees" or "enemy combatants" to be tried under a new Military Commissions system. But whether he will actually go to trial is an open question because so many tangled legal problems are unresolved. Some of those problems relate to controversy over the Military Commissions Act, passed in 2006, which allows the president to designate certain people as enemy combatants to be tried by a military commission, with fewer civil rights than they would have in a regular trial.

Hamdan's defense lawyers claim that "Mr. Hamdan is so psychologically damaged by the conditions under which he has been held that he is incapable of assisting his lawyers." When he was captured in Afghanistan, his lawyers cite as an example, "the guards rammed Mr. Hamdan's head into a roadside post repeatedly." (New York Times, 4/10 and 4/5/08)

The best-known person to be tried for war crimes under the US War Crimes Act of 1996 is Khalid Shaikh Mohammed, who reportedly confessed to being the mastermind of the Sept. 11 attack. But will he be allowed to testify that his confession was extracted from him by waterboarding and quite possibly other interrogation techniques regarded internationally as torture?

Other claims, issues and problems on the road to trial for the 15 include:

• A statement from the American Civil Liberties Union and the National Association of Criminal Defense Lawyers that detainees charged with war crimes will be tried using a process that would permit convictions based on 'secret evidence, hearsay and confessions derived from torture.'"
  
  
• The CIA's destruction of videotaped interrogations of two Al Qaeda prisoners.
  
  
• A military judge's order to defense lawyers not to tell their client the identity of witnesses against him. A defense lawyer, Lt. Comdr. William Kuebler of the Navy, said this requires him to keep secrets from his client. "Instead of a presumption of innocence and of a public trial, we start with a presumption of guilt and of a secret trial." A Pentagon official said the order was necessary to protect the lives of witnesses. (Times, 12/1/07)
  
  
• The refusal of at least three detainees to accept any American lawyer or to participate in the trials and the refusal of the judge to permit lawyers' visits to win the trust of detainees.
  
  
• A Military Commission rule that even if a defendant is acquitted, he need not be released.

"Very few of the prisoners at Guantanamo were captured during conventional battles with the US military," writes Joseph Margulies in Guantanamo and the Abuse of Presidential Power. "In fact, only 5 percent of the prisoners at the base were even captured by the United States. The great majority were captured either by the Northern Alliance, tribal warlords, or Pakistani intelligence officers during raids on villages, mosques, and houses, where supposed combatant were indistinguishable from innocent civilians. But the obvious risk under these circumstances is that the person blending in with the civilian population is, in fact, a civilian."

In the years that "enemy combatants" have been imprisoned, only one has been judged by a military commission: David Hicks, an Australian. After five years in Guantanamo, Hicks pleaded guilty to "material support for terrorism," was sentenced in March 2007 to nine months, returned to Australia to serve his sentence and is now free.

More than 500 of the 800 original detainees have been released. Some have been imprisoned in their home countries, but most of those who were released from American detention are now free.

One of those released is Yaser Hamdi. Hamdi was captured by the Northern Alliance in Afghanistan late in 2001. The Alliance turned him over to the US, which declared him a Taliban "enemy combatant" and sent him to Guantanamo. In April 2002 the military learned that Hamdi was an American citizen and transferred him to the naval brig in Norfolk, Virginia. Hamdi's father filed a habeas corpus petition on his son's behalf, and Hamdi's lawyer sought a meeting with his client. An acting commander at Guantanamo refused to allow it because it would "cripple the national security." A judge overruled the commander. The government appealed.

The Hamdi case reached the Supreme Court. In June 2004, the court ruled that he could not be held without access to a legal process. Justice Sandra Day O'Connor declared, "A state of war is not a blank check for the President" and he cannot "turn our system of checks and balances on its head." Justice Antonin Scalia, perhaps the Court's most conservative member, wrote, "Indefinite imprisonment at the will of the Executive" strikes at "the very core of liberty."

Hamdi was released on October 11, 2004, without being charged, after nearly three years of imprisonment, most of it in solitary confinement.

As for the other 260 detainees, they are "left in limbo, without any charges pending against them or any foreseeable prospect of release," writes Jeffrey Toobin in the New Yorker. "The prisoners spend about twenty-two hours a day inside climate-controlled, eight-foot-by-twelve-foot cells, with no televisions or radios, and generally leave only for showers or for recreation in small open-air cages."(Jeffrey Toobin, "Camp Justice," New Yorker, 4/14/08)

Reports have come from many sources of abusive behavior and torture by US interrogators at Guantanamo, Abu Ghraib and elsewhere. These sources include:

• US military organizations, including Army investigations headed by Major General Antonio Taguba and by Major General George Fay and Lieutenant General Anthony Jones; and a Naval investigation headed by Vice Admiral Albert Church
  
  
• Federal Bureau of Investigation
  
  
• Human rights organizations, including Human Rights Watch, American Civil Liberties Union, Human Rights First, Amnesty International, and the Center for Constitutional Rights
  
  
• Humanitarian organizations including the International Committee of the Red Cross
  
  
• United Nations entities, including Human Rights Monitor and the Committee Against Torture

For discussion

1. What questions do students have about the reading? How might they be answered?

2. What are some of the problems in the way of trying Guantanamo prisoners? What reasons are there for these problems?

3. Do you think that the military commissions process is fair? Why or why not?

4. Why have so many Guantanamo prisoners been freed?

5. Why weren't US officials more certain that each prisoner was a genuine suspect?

6. Do you agree with Justice O'Connor's comments on the Hamdi case? Justice Scalia's? Why or why not?

For class debates

Subject 1: Resolved, that an amendment to the Constitution of the United States and additions to all appropriate treaties and laws provide for the President to order enhanced interrogation techniques for use in the war on terror.

Subject 2: Resolved, that President Bush, Vice President Cheney, Condoleezza Rice and other top administration members who participated in decision-making about detainee treatment should be tried for war crimes.

For inquiry

1. Third Geneva Conventions on prisoner treatment

2. UN Convention on Torture

3. US War Crimes Act of 1996

4. Treatment of prisoners at Guantanamo

5. Rules for Guantanamo prisoner trials

6. Abusive treatment and torture as described in any investigation or by any humanitarian or human rights organization

For citizenship

The terrorist threat and approaches to countering it-including presidential powers and the use of torture, are vital and very controversial subjects. Schoolwide discussions, assemblies, guest speakers and student action on it are appropriate. See "Teaching Social Responsibility" in the high school section of www.teachablemoment.org for detailed suggestions.

This lesson was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email author Alan Shapiro at: ashapiro7@comcast.net.

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