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War crimes, torture and impunity

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 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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