The last instalment in this series laid out the basic facts of the Bush Administration’s plan to justify the use of torture through narrow interpretations of the terminology used to describe the practices labelled as “enhanced interrogation.” This article will be centred on the practices that skirted the legal category of torture under Bybee’s framework.
Torture’s Implementation and Impact
Contrary to Bybee’s claim about the effects of waterboarding, Zubaydah did have immediate and longstanding psychological impacts. New York Times article by Carol Rosenberg discussing some of the negative impacts of the Program, Zubaydah was waterboarded eighty-three times over 4 years. In a declassified Senate Intelligence Committee report from 2014, the CIA’s program was described as “brutal and far worse than the C.I.A. represented.” In Zubaydah’s own words he stated, “They kept pouring water and concentrating on my nose and my mouth until I really felt I was drowning, and my chest was just about to explode from the lack of oxygen.” Zubaydah further describes the immense pain he experienced in other torture methods. During the practice of “walling,” he states how he was blindfolded and had his head forcefully struck into a wall behind him. Rosenberg’s article details how with each strike, he was blinded for a few moments, would collapse, and “be dragged by the plastic-tape-wrapped towel ‘which caused bleeding in my neck.’” Zubaydah also states how he was denied sleep by being bound in uncomfortable positions and doused with water for “maybe two or three weeks or even more,” experienced convulsions and vomiting during waterboarding, and even lost consciousness.[i]
Contrary to the Bush Administration’s official position, prolonged physical and mental suffering were direct impacts of America’s use of torture. As detailed in How America Tortures, Mark P. Denbeaux writes that the CIA “The CIA admitted that sleep deprivation can induce hallucinations; however they falsely claimed, ‘those who experience such psychotic symptoms have almost always had such episodes prior…[ii]’” Denbeaux also references the Senate Select Committee on Intelligence findings that “…five detainees experienced ‘disturbing’ hallucinations during prolonged sleep deprivation (e.g., one detainee was ‘visibly shaken’ by his hallucination of dogs mauling and killing his sons and family). In at least two of those cases, the CIA continued the sleep deprivation.” Denbeaux also cites well-established psychological research that maintains sleep deprivation has negative impacts on mental stability within twenty-four hours. Even in this short time, individuals can develop permanent visual distortions, anxiety, and instability. Within thirty to forty-eight hours, illusions and simple visual hallucinations begin. Complex visual hallucinations occur within fifty-three hours, auditory within sixty, and develop within seventy-two.[iii] Denbeaux also writes how PTSD and other mental disorders are strong possibilities in those subjected to psychological torture. He states “Researchers conducted a survey on the use of physical torture as opposed to psychological torture, and the ‘researchers collected medical assessments of whether the torture survivors showed signs of PTSD…’They found no difference in the prevalence of this disorder between the two groups.[iv]” Following his torture, Zubaydah developed numerous mental and physical ailments as detailed in an LA Times article which states “…he suffers blinding headaches and has permanent brain damage. He has an excruciating sensitivity to sounds, hearing what others do not. The slightest noise drives him nearly insane. In the last two years alone, he has experienced about two hundred seizures… Already, he cannot picture his mother’s face or recall his father’s name. Gradually, his past, like his future, eludes him.[v]”
Sources of Justification for Torture
After the memos were released, they quickly became the subject of public scrutiny and critique. Jack Goldsmith, who took over the OLC in 2003 stated the legal analysis they put forth was “deeply flawed” and “sloppily reasoned.[vi]” Instead of serving any tangible aim, the US use of torture exemplified a blatant disregard for the US Constitution as well as human rights. According to Torture and the Biopolitics of Race by Dorothy E. Roberts, these practices, whether occurring under the Bush administration or elsewhere in US History serve to uphold US hegemony and are an embodiment of white supremacist ideals. According to Roberts, the use of torture can be seen throughout the history of the US, especially in the colonial context. During the US colonial administration in the Philippines, torture was frequently used with overtly racist motivations. During the coverage of an insurrection, American correspondence stated Filipinos were “little better than a dog,” and that US troops were “not dealing with civilized people.” William Howard Taft, who was Governor-General at the time stated that the conflict was a war “between superior and inferior races.[vii]” During the Vietnam war, similar sentiments are echoed, as the US continued previous practices from the French colonial administration.[viii] On the use of torture during the War on Terror, Roberts writes that those attempting to justify the US’ actions “…focused largely on the precise definition of torture, or, more precisely, narrowing the definition enough to exempt U.S. officials from criminal liability under international and domestic laws.[ix]” Referring to the celebratory nature of lynching in the US, Roberts states “Whites purchased photographs of the mutilated bodies as mementos of the event and mailed gruesome picture postcards to their friends and relatives.[x]” She continues “…scholars have noted parallels between the contemporary mass circulation of photographs showing scenes of sexualized torture… Some poses in the Abu Ghraib photographs strikingly (and perhaps deliberately) mirror lynching iconography-the hooded detainee with a noose around his neck; the naked detainees posed in sexually humiliating positions, lacerated, shackled, and held by a dog leash; the U.S. soldiers grinning triumphantly in front of their degraded victims.[xi]” Islamophobia has been a foundational effort of the War on Terror since its earliest stages. According to Khaled A. Beydoun in Exporting Islamophobia in The Global “War on Terror,” this racism is best exemplified by President George W. Bush’s words “This is not . . . just America’s fight. And what is at stake is not just America’s freedom. This is the world’s fight. This is civilization’s fight. This is the fight of all who believe in progress and pluralism, tolerance, and freedom . . .. The civilized world is rallying to America’s side.” Bush’s words are a clear us vs them mentality with the “them” being a faceless and ambiguous yet inherently Muslim enemy.[xii] Since any Muslim has been presumed as a lesser enemy, the inhumane treatment is automatically justified.
Despite having declassified much of the information surrounding the use of torture in the War on Terror during the Obama administration, historical acknowledgement of the practice remains sparse. Additionally, torture has not been completely expunged from the possibility by the United States. In 2016, during his presidential campaign, Donald Trump stated the US should “bring back a hell of a lot worse than waterboarding,” adding “I like it a lot. I don’t think it’s tough enough.” Likewise, racialized comments remain within US political vernacular. As to why the US should continue to practice torture, President Trump stated, “We have to fight so viciously and violently because we’re dealing with violent people, vicious people.[xiii]” With the sentiment of “us vs them” remaining dominant in the US counterterrorist strategy (and to some extent policing domestically), the likelihood that torture will once again be implemented has not completely diminished.
[i] Carol Rosenberg, “What the C.I.A.’S Torture Program Looked like to the Tortured,” The New York Times, December 4, 2019, https://www.nytimes.com/2019/12/04/us/politics/cia-torture-drawings.html.
[ii] Mark Denbeaux et al., “How America Tortures,” papers.ssrn.com, December 2, 2019, 26, (Rochester, NY, November 27, 2019), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3494533.
[iii] Denbeaux, et al., 29
[iv] Denbeaux, et al., 37
[v] Joseph Margulies, “The Suffering of Abu Zubaydah,” Los Angeles Times, April 30, 2009, https://www.latimes.com/archives/la-xpm-2009-apr-30-oe-margulies30-story.html
[vi] Michael Isikoff, “Torture Report Could Be Trouble for Bush Lawyers,” Newsweek, February 13, 2009, https://www.newsweek.com/torture-report-could-be-trouble-bush-lawyers-82707.
[vii] Dorothy E. Roberts, “Torture and the Biopolitics of Race,” University of Miami Law Review 62, no. 229, (2008): 241, https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1574&context=faculty_scholarship.
[viii] Roberts, 241-242
[ix] Roberts, 237
[x] Roberts 234
[xi] Roberts, 234
[xii] Khaled A. Beydoun, “Exporting Islamophobia in the Global ‘War on Terror,’” New York University Law Review Online 95, no. 81 (2020): 82, https://www.nyulawreview.org/online-features/exporting-islamophobia-in-the-global-war-on-terror/.
[xiii] Rory Cox, “Historicizing Waterboarding as a Severe Torture Norm,” International Relations 32, no. 4 (September 20, 2018): 488–512, https://doi.org/10.1177/0047117818774396.