President Barak Obama’s mantra is that we should “look forward, not backward.” Of course, we can all have sympathy with the man – if he spent his time poring over the mistakes of his predecessor, it would consume all four years of his Administration, and then some. Additionally, he is a consensus builder and, with the election won, he does not want to offend the large constituency of those who committed these errors.
Yet it is a mistake to gloss over the past. We can only learn from history if we know what that history was. Furthermore, both George Bush and Tony Blair vigorously championed the rights of victims – and both men left many victims strewn in their wake, people who have the right to understand how they came to be victimized.
It is the responsibility of journalists, as well as lawyers, to ensure this accountability. This article is a plea for help in tracing those ultimately responsible for the rendition to torture of Binyam Mohamed, who spent seven years suffering one form of degradation or another, from Pakistan to Morocco to Afghanistan to Guantánamo Bay.
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Cofer Black is the arch-conservative former head of the CIA’s Counterterrorism Center. He is very quotable, as he veers from one colourful phrase to the next. His description to Congress of the adoption of enhanced interrogation techniques after 9/11 became a mantra of the Bush Administration: the “gloves came off”.
This is generally interpreted to mean that America began to abuse its prisoners in overt ways, but the phrase implies something else as well: When you take off your gloves, you begin to leave fingerprints.
Of all the issues presented by the rendition of British resident Binyam Mohamed to Morocco, perhaps the most important involves the ladder of accountability: Who is to be held responsible? Who ultimately gave the green light to his rendition flight? And who had the opportunity to prevent his torture, but chose to allow the torture to go on?
Binyam’s most important memory coming out of his nightmare may be what an American intelligence agent told him in Pakistan, in April 2002. Binyam repeatedly demanded to speak to a superior officer, someone who could resolve his situation. Chuck – the nom de torture given by the agent – repeatedly gave the same reply: all the decisions about Binyam’s case, he said, were being made in Washington … in the White House.
The International Committee of the Red Cross (ICRC) wrote a secret report about the abuse of the “High Value Detainees” held in Guantánamo Bay. It was recently leaked to Mark Danner, who discussed it in the New York Review of Books.[1] He questions who ultimately gave the order to render prisoners to torture. Clearly, such a momentous policy decision was not made by a lowly agent, stationed in Pakistan. Perhaps responsibility lies with the CIA director or perhaps it was someone higher up? Shortly after Abu Zubaydah was captured, according to ABC News, CIA officers "briefed high-level officials in the National Security Council's Principals Committee," including Vice President Dick Cheney, National Security Adviser Condoleezza Rice, and Attorney General John Ashcroft, who "then signed off on the [interrogation] plan."
We have known for some time that the White House approved extreme interrogation methods. The Bush Administration ordered up an array of contorted legal opinions, each designed to provide a “golden shield” – legal protection for any future lawsuit. While these opinions have been roundly criticized, little analysis has gone into how each cover-your-butt memo provides an insight into when the White House was plotting each reprehensible act, and who was considered ultimately responsible for it.
For example, Danner writes about Jay Bybee’s infamous memorandum on torture which was meant to protect the perpetrators of “enhanced interrogation techniques” from legal liability. Crucially, this memo was issued on August 1, 2002, suggesting that US abuses were not official policy before that time.
Binyam Mohamed was flown to his awful fate in Morocco eleven days earlier, on July 21, 2002. The classified email debate over his destination must have been pinging through the ether earlier still. So we must search through earlier memos to find the one that justified Binyam’s torture.
On March 13, 2002, Bybee laid out the President’s power to order rendition, defined as the transfer of a prisoner to a third country without judicial approval – the more traditional legal term is ‘kidnapping’. Bybee advised the president that “the Torture Convention … imposes limitations on transfer, but those restrictions have no extraterritorial effect, and are thus not applicable to prisoners who are captured and detained abroad.”[2] There was, then, to be no limit to the power of the Commander-in-Chief to do as he wished.
Bybee’s rationale for rendition was even more bizarre than his justification for torture: Henry V, he said, had ordered the execution of a number of French prisoners after the Battle of Agincourt in retaliation for a French attack on the English baggage train. And Edward IV had supervised the slaughter of some Lancastrian prisoners in 1471. These instances were offered to illustrate the untrammelled power of the Executive branch to define the appropriate treatment of captives.
“Although the treatment of prisoners of war generally improved as time went on,” Bybee conceded, his next precedent was no more recent than the Spanish Armada in 1588: Queen Elizabeth I apparently again dictated every element of the conditions under which prisoners were held.
The objective of Bybee’s memo – to sanctify rendition – was certainly medieval, but what does this memo tell us about who was ultimately responsible for Binyam Mohamed’s treatment? According to Bybee, ever since Agincourt, the power to abuse prisoners lay with the King, or his modern-day counterpart the President. In other words, only President Bush had the authority to order Binyam’s rendition. Bush either had to authorize it himself, or specifically delegate his authority to someone else – perhaps, Dick Cheney.
So was “Chuck” telling the truth when he told Binyam that his rendition had been authorized by the White House itself? Only litigation or investigative journalism will tell.
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Crossing the Atlantic, the buck stops in 10 Downing Street, as it does in the White House. In any search for accountability in Binyam’s case, it is here that we must look. The analysis is made more difficult by a very British desire to keep secrets carefully stashed in the dirty laundry basket. Not for the British any embarrassing memos that leak out to justify policy decisions that should never have been made in the first place.
Yet, as each piece of the jigsaw puzzle falls into place, a picture begins to emerge. When he was being tortured in Pakistan, Binyam looked to the British for salvation. We know that Agent B (the UK intelligence officer who questioned him in Karachi) had evidence that Binyam was already being abused at the behest of the Americans. Imagine you are being tortured, your saviour rides up on his white charger … and then turns his horse around and leaves. This was the cruellest crime of all: Agent B and his superiors learned that Binyam was then in a torture chamber, and did nothing at all about it.
British intelligence has admitted to knowing that Binyam was moved to another country, but denies knowing where he was being held. This is simply implausible: Binyam saw another British man in Morocco who he knew. That man (we’ll call him Prisoner C, to avoid drawing attention to his status as an informant) began working with British intelligence. Prisoner C’s cooperation earned him a return to London, rather the opportunity to collect more CIA frequent flier points en route to Guantánamo Bay. How likely is it that Prisoner C failed to tell Agent B’s colleagues where Binyam was?
It is easy to blame the field officer – ultimately, the paper trail will leave him with little in the way of a defence. But it is unfair to seek out these small-time scapegoats. Who ultimately made the decision to act the ostrich with regard to Binyam’s torture?
We know that the UK intelligence services considered it “essential in the interests of national security” to secure additional answers from Binyam, yet for months the British were not permitted access to him by the Americans. Who was told that national security was supposedly being compromised in such a significant way? If the Prime Minister – then Blair -- was kept in the dark about it, why was this? Had British intelligence gone rogue?
If Blair knew that our American allies had rendered a British resident to Morocco, why did he do nothing about it?
Someone certainly made a decision. We know that UK intelligence did submit questions that were to be put to Binyam, along with photographs to be used in his interrogation. They knew that the Americans would pass the questions to the Moroccans – who they had to know were torturing Binyam (he was not in Morocco on a Club Med vacation). We know that they eventually received replies – although we are not permitted to know what the questions were, or the answers.
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Torture is revolting. Yet of all the legacies of the Bush-Blair era, the most invidious is the subsequent effort to cover up the truth. Politicians who have gathered in political capital by insisting that criminals should be held responsible cannot be permitted to hide their own culpability. Yet they are currently getting away with it by conflating national security with national embarrassment – evidence of their own criminal wrongdoing remains classified, because they say it should.
If it is essential to democratic government that the electorate be allowed to assess the candidates’ worth, then the suppression of evidence of crimes by elected officials must be the antithesis of democracy. This is why the ultimate challenge to journalists must be to expose those politicians who should take the blame for the crimes committed against Binyam Mohamed.
[1] Mark Danner, US Torture: Voices from the Black Sites, New York Review of Books (April 9, 2009), regarding ICRC Report on the Treatment of Fourteen "High Value Detainees" in CIA Custody, by the International Committee of the Red Cross (43 pp., February 2007).
[2] http://www.usdoj.gov/opa/documents/memorandum03132002.pdf. Bybee went on to say, at footnote 1, that even if the treaty did impose limits, any action by the President that was “inconsistent with a treaty would amount to a suspension of the treaty” -- and would therefore not be a violation.
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