Tomgram: Rebecca Gordon, Believe the Autocrat
Human
whats? In the Middle East and elsewhere, the Trump administration has
begun to signal that human rights aren’t exactly on its agenda.
Secretary of State Rex Tillerson has taken the lead in this process in a
round of personal diplomacy in the Middle East (with Trump’s generals not far behind). In early March, he wrote various "advocacy groups" that the administration was considering
withdrawing from the U.N. Human Rights Council to protest the records
of some of its members, including Saudi Arabia and China. And then, as
if to hint at what the value of such rights might really be in
Washington, he signaled to Congress that the administration would, as
the New York Times reported,
“lift all human rights conditions on a major sale of F-16 fighter jets
and other arms to Bahrain.” This means American arms dealers can sell
their weaponry to that Sunni Persian Gulf monarchy, despite its grim repression
of its majority Shiite population. And that, in turn, means that we
can finally put something like an initial price tag on human rights, at
least for the Shiites of the tiny kingdom that houses the U.S. Fifth
Fleet: $3.8 billion ($2.8 billion for those 19 new fighter planes and a
billion dollars more to support that country’s air force in various
other ways).
We can similarly put a very partial price tag on
the value of human rights when it comes to Yemenis. The citizens of
that riven land are living at the edge of a potentially catastrophic famine and under regular air attack
from Saudi Arabia and its allies (including Bahrain) in a disastrous
American-backed two-year-old war that was meant to check Iranian
influence in the region. It has already cost at least 10,000 lives and displaced millions. As for that very partial price tag, it's $350 million
for 16,000 Raytheon guided munitions kits that will turn dumb bombs
into “smart” ones. Their sale to the Saudis had previously been blocked
by the Obama administration in response to news about their air strikes
against civilians in Yemen. Now, as a signal of the sort of heightened
support the Trump administration expects to offer that country's royal
family -- you know, the crew with that terrible human rights record --
in its fight against Iranian influence in the region, it is releasing
them. (Undoubtedly, more cluster bombs will be next on the list.)
We
are, of course, at the very beginning of the Trump era, which means so
much yet remains to be known, though The Donald’s generals are clearly
already ramping up America’s wars (and the civilian casualties
that go with them) in Syria, Iraq, Yemen, and Somalia. In turn, that
means sooner or later other classic aspects of America’s recent wars
will undoubtedly be ramped up as well. With that in mind, we’ve turned
to TomDispatch regular Rebecca Gordon, author of American Nuremberg and an expert on the “unholy trinity” of grim methods this country has brought to bear in its war on terror -- torture, extraordinary rendition, and indefinite detention
(think: Guantánamo) -- to read Washington’s tea leaves and give us a
preview of things to come and so of human rights in the age of Trump.
Tom
Resurrecting the Unholy Trinity: Torture, Rendition, and Indefinite Detention Under Trump
by Rebecca Gordon
Torture Redux
It should come as no surprise to anyone who paid minimal attention to the election campaign of 2016 that Donald Trump has a passionate desire to bring back torture. In fact, he campaigned on a platform of committing war crimes of various kinds, occasionally even musing about whether the United States could
use nukes against ISIS. He
promised to return waterboarding to its rightful place among twenty-first-century U.S. practices and, as he so eloquently put it, “a hell of a lot worse.” There’s no reason, then, to be shocked that he’s been staffing his administration with people who generally feel the same way (Secretary of Defense James “Mad Dog” Mattis
being an obvious exception).
The CIA was certainly
not the only outfit engaged in torture in the Bush years, but it’s the one whose practices were most thoroughly
examined and publicized. Despite his enthusiasm for torture, Trump’s relationship with the Agency has, to say the least, been frosty. Days before his inauguration, he responded to revelations of possible Russian influence on the U.S. election by accusing its operatives of behaving like Nazis, tweeting: “Intelligence agencies should never have allowed this fake news to 'leak' into the public. One last shot at me. Are we living in Nazi Germany?”
He quickly appointed a new director of the CIA (as hasn’t been true of quite a few other positions in his administration). He chose former Congressman Mike Pompeo, whose advice about torture he has also said he would consider seriously. A polite term for Pompeo’s position on the issue might be: ambiguous. During his confirmation hearings, he
maintained that he would “absolutely not” reinstate waterboarding or other “enhanced techniques,” even if the president ordered him to. “Moreover,” he added, “I can’t imagine that I would be asked that.”
However, his written replies to the Senate Intelligence Committee told quite a different, far less forthright tale. Specifically, as the British Independent
reported, he wrote that if a ban on waterboarding were shown to impede the “gathering of vital intelligence,” he would consider lifting it. He added that he would reopen the question of whether interrogation techniques should be limited to those found in the Army Field Manual. (“If confirmed, I will consult with experts at the Agency and at other organizations in the U.S. government on whether the Army Field Manual uniform application is an impediment to gathering vital intelligence to protect the country.”)
In other words, as the Independent observed, if the law prohibits torture, then Pompeo is prepared to work to alter the law. “If experts believed current law was an impediment to gathering vital intelligence to protect the country," Pompeo wrote to the Senate committee, “I would want to understand such impediments and whether any recommendations were appropriate for changing current law.” Unfortunately for both the president and him, there are laws against torture that neither they nor Congress have the power to change, including the U.N. Convention against Torture, and the Geneva Conventions.
Nor is Mike Pompeo the only Trump nominee touched by the torture taint. Take, for instance, the president’s pick for the Supreme Court. From 2005 to 2006, Neil Gorsuch worked in the Justice Department’s Office of Legal Counsel, the wellspring for John Yoo’s and Jay Bybee’s infamous “
torture memos.” Gorsuch also
assisted in drafting Bush’s “signing statement” on the 2005 Detainee Treatment Act. That act included an amendment introduced by Senator John McCain prohibiting the torture of detainees. As the White House didn’t want its favorite interrogation methods curtailed, Gorsuch recommended putting down “a marker to the effect that... McCain is best read as essentially codifying existing interrogation policies.” In other words, the future Supreme Court nominee suggested that the McCain amendment would have no real effect, because the administration had never engaged in torture in the first place. This approach was the best strategy, he argued, to “help inoculate against the potential of having the administration criticized sometime in the future for not making sufficient changes in interrogation policy in light of the McCain portion of the amendment.”
In his brief tenure at the Office of Legal Counsel, Gorsuch
provided further aid to the supporters of torture by, for example, working on government litigation to prevent the exposure of further “Darby photos.” These were the
shocking pictures from Iraq’s Abu Ghraib prison that came into the possession of U.S. Army Sergeant Joe Darby. He then passed them up the chain of command, which eventually led to the public revelation of the abuses in that U.S.-run torture palace.
Trump’s new attorney general, Jeff Sessions, is also a torture enthusiast. He was one of only nine senators to vote against the 2005 Detainee Treatment Act. The Act limited the military to the use of those interrogation methods found in the Army Field Manual. In 2015, he joined just 20 other senators in opposing an amendment to the next year’s military appropriations bill, which extended the Field Manual rules to all U.S. agencies involved in interrogation, not just the military.
Reviving the Black Sites?
So far, President Trump hasn’t had the best of luck with his executive orders. His two travel bans, meant to keep Muslims from entering the United States, are at present trapped in federal court, but worse may be in the offing.
Trump promised during the campaign to reopen the CIA’s notorious
black sites and bring back torture. Shortly after the inauguration, a draft executive order
surfaced that was clearly intended to do just that. It rescinded President Obama’s orders 13491 and 13492 and directed the secretary of defense and the attorney general, together with “other senior national security officials,” to review the interrogation policies in the Army Field Manual with a view to making “modifications in, and additions to those, policies.” That would mean an end run around Congress, since it doesn’t take an act of that body to rewrite part of a manual (and so reinstitute torture policy).
It also called on the director of national intelligence, the CIA director, and the attorney general to “recommend to the president whether to reinitiate a program of interrogation of high-value alien terrorists to be operated outside the United States and whether such program should include the use of detention facilities operated by the Central Intelligence Agency.” In other words, they were to consider reopening the black sites for another round of “enhanced interrogation techniques.”
As in so many such documents, that draft order included a cover-your-ass clause, in this case suggesting that “no person in the custody of the United States shall at any time be subjected to torture or cruel, inhuman, or degrading treatment or punishment, as proscribed by U.S. law.”
As we learned in the Bush years, however, such statements have no real effect because, as in a
2002 memo produced by John Yoo and Jay Bybee, “torture” can be redefined as whatever you need it to be. That memo certified that, to qualify as torture, the pain experienced by a victim would have to be like that usually associated with “serious physical injury, such as organ failure, impairment of bodily function, or even death.” In other words, if he didn't die or at least come close, you didn’t torture him.
After the recent draft executive order on these subjects was leaked to the media and caused a modest to-do, a later version
appeared to drop the references to black sites and torture. While no final version has yet emerged, it’s clear enough that the initial impulse behind the order was distinctly Trumpian and should be taken seriously.
As soon as the draft order
surfaced in the press in late January, the White House disclaimed all knowledge of it and no version of it appears on current lists of Trump executive actions since taking office. But keep in mind that presidents can issue secret executive orders that the public may never hear about -- unless the news spills out from an administration whose powers of containment so far could be
compared to those of a sieve.
Déjà Vu, Rendition Edition
Notably, neither of Obama’s Inauguration Day executive orders addressed extraordinary rendition. In fact, this was a weapon he preferred to keep available.
What is extraordinary rendition? Ordinary rendition simply means transferring someone from one legal jurisdiction to another, usually through legal extradition. Rendition becomes “extraordinary” when it happens outside the law, as when a person is sent to a country with which the United States does not have an extradition treaty, or when it is likely (or certain) that the rendered person will be tortured in another country.
In the Bush years, the CIA ran an extraordinary
rendition machine, involving the
kidnapping of terror suspects (sometimes, as it turned out, quite
innocent people) off the streets of global cities as well as in the backlands of the planet, and sending them to those brutal CIA black sites or rendering them to torturing regimes around the world. Rendition continued in a far more limited way during Obama’s presidency. For example, a 2013 Washington Post story
described the rendition of three Europeans “with Somali roots” in the tiny African country of Djibouti and of an Eritrean to Nigeria. The article suggested that, in part because of congressional intransigence on closing Guantánamo and allowing the jailing and trial of suspected terrorists in U.S courts, rendition represented “one of the few alternatives” to the more extreme option of simply
killing suspects outright, usually by drone.
Recently, there was news that a Trump associate might have been involved in planning a rendition of his own. Former CIA Director James Woolsey
told the Wall Street Journal that, last September, Lieutenant General Michael Flynn discussed arranging an extralegal rendition with the son-in-law of Turkish President Recep Tayyip Erdogan and Turkish Foreign Minister Mevlut Cavusoglu. At the time, he was serving as an adviser to the Trump campaign. He later -- briefly -- served as President Trump’s national security adviser.
The target of this potential rendition? Fethullah Gulen, an Islamic cleric who has lived for decades in the United States. President Erdogan believes that Gulen was behind a 2016 coup attempt against him and has asked the U.S. to extradite him to Turkey. The Obama administration temporized on the subject, insisting on examining the actual evidence of Gulen’s involvement.
Flynn’s foray may have been an instance of potential rendition-for-profit, a plan to benefit one of his consulting clients. At the time, Flynn’s (now-defunct) consulting firm, the Flynn Intel Group, was working for a Dutch corporation, Inovo, with ties to Erdogan. The client reviewed a draft op-ed eventually
published in the Hill in which Flynn argued that Gulen should be extradited, because he is a “radical cleric” and Turkey is “our friend.” In addition to
lying about his contacts with the Russian ambassador during the election campaign, it turns out that Flynn was probably
working as an unregistered foreign agent for Turkish interests at that time.
Mike Pompeo also appears to be bullish on renditions. In his
written testimony to the Senate Intelligence Committee, he indicated that under him the CIA would probably continue this practice. When asked how the Agency would avoid sending prisoners to countries known to engage in torture, his reply could have come straight from the Bush-Cheney playbook:
“I understand that assurances provided by other countries have been a valuable tool for ensuring that detainees are treated humanely. In most cases other countries are likely to treat assurances provided to the United States government as an important matter.”
Asking for such assurances has in the past given the U.S. government cover for what was bound to occur in the prisons of countries known for torture. (Just ask
Maher Arar rendered to Syria or
Binyam Mohammed rendered to Morocco about what happened to them.)
We’ll Always Have Guantánamo...
“We’ll always have Paris,” Rick
reminds Ilsa during their bittersweet goodbye in the classic film Casablanca. Our Guantánamo lease with Cuba (which reads, "for use as coaling [refueling] or naval stations only, and for no other purpose”) is a permanent one. So it looks like we’ll always have Guantánamo, with its memories of
torture and murder, and its remaining
41 prisoners, undoubtedly stranded there forever.
As it happens, Supreme Court nominee Neil Gorsuch’s fingerprints are all over the Bush administration’s Guantánamo policy, too. While at the Office on Legal Counsel, he helped the administration fight a major legal challenge to that policy in
Hamdan v. Rumsfeld.
In that case, the government argued that detainees at Guantánamo did not have the right of habeas corpus, that the president has the authority to decide not to abide by the Geneva Conventions, and that detainees could be tried by military “commissions” in Cuba rather than by U.S. courts. Given that history, it’s unlikely he’d rule in favor of any future challenge to whatever use President Trump made of the prison.
While on the campaign trail, Trump made it clear that he would keep Guantánamo eternally open. In a November rally in Sparks, Nevada, he
told a cheering crowd:
“This morning, I watched President Obama talking about Gitmo, right, Guantánamo Bay, which by the way, which by the way, we are keeping open. Which we are keeping open... and we're gonna load it up with some bad dudes, believe me, we're gonna load it up.”
In mid-February, Trump Press Secretary Sean Spicer
reiterated his boss’s affection for the prison, when he told the White House press corps that the president believes it serves “a very, very healthy purpose in our national security, in making sure we don’t bring terrorists to our seas.” Perhaps Spicer meant “our shores,” but the point was made. Trump remains eager to keep the whole Guantánamo prison system -- including, we can assume, indefinite detention -- up and running as an alternative to bringing prisoners to the United States.
It seems that the head of the Pentagon agrees. In December 2016, retired Marine General (now Secretary of Defense) James Mattis
told the Senate Armed Services Committee that any detainee who “has signed up with this enemy” and is captured wherever “the president, the commander-in-chief, sends us” should know that he will be a “prisoner until the war is over.” Given that our post-9/11 military conflicts are truly forever wars, in Mattis’s view, pretty much anyone the U.S. captures in Syria, Iraq, Afghanistan, Somalia, Yemen, or who knows where else will face at least the possibility of spending the rest of his life in Guantánamo.
Reading the Tea Leaves
As far as we know, President Trump has yet to green-light his first case of torture or his first extraordinary rendition, or even to add a single prisoner to the 41 still held at Guantánamo. All we have for now are his ominous desires and promises -- and those of his underlings. These are enough, however, to give us a clear understanding of his intentions and those of his appointees. If they can, they will resurrect the unholy trinity of torture, rendition, and indefinite detention. The future may not yet be inscribed in Trumpian gold anywhere, but on such matters we should believe the autocrat.
Rebecca Gordon, a TomDispatch regular, teaches in the philosophy department at the University of San Francisco. She is the author of American Nuremberg: The U.S. Officials Who Should Stand Trial for Post-9/11 War Crimes. Her previous books include Mainstreaming Torture: Ethical Approaches in the Post-9/11 United States and Letters from Nicaragua.
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Copyright 2017 Rebecca Gordon
