On February 5, 2003, exactly five years ago tomorrow, Secretary of State Colin Powell gave his speech to the Security Council presenting “evidence” designed to persuade the world of the need to make war on Iraq.[i] Prior to Powell’s speech, a curious event took place at United Nations headquarters. Acting on a decision from higher authorities, U.N. workers covered up a tapestry of Pablo Picasso’s famous anti-war work, Guernica, which normally hangs at the entrance to the Security Council, where press conferences take place.[ii]

Picasso’s Guernica, a painting depicting the aerial bombing of a Spanish village in 1937, is perhaps the world’s best known artistic symbol of the horrors of war. Indeed, the tapestry reproduction was placed at the Security Council’s door to serve as a reminder of those horrors. One can thus imagine why Powell might not have wanted the Picasso as his backdrop when advocating for a war that was to begin with “shock and awe” in Baghdad. But regardless of whether it was censured at the behest of the U.S. or shrouded for the far-fetched aesthetic reasons cited by U.N. officials, the hiding of Guernica was a profound mistake. Then, as now, the world desperately needed the artwork’s cautionary message.

On that fateful Guernica-less day five years ago, Powell confidently claimed to the world that Saddam Hussein had trained Al-Qaeda in the use of chemical and biological weapons of mass destruction.[iii] We now know he largely based this claim on a confession by a man named Ibn al-Libi, a confession obtained after al-Libi was rendered by the U.S. to Egypt and tortured. Al-Libi has since recanted. Why did he say that Iraq had trained Al-Qaeda in W.M.D. in the first place? The C.I.A. seems to think he said it because it got the torture to stop. Precisely one year after Powell’s speech, a C.I.A. cable lent credence to al-Libi’s account that the Egyptians essentially buried him alive for some 17 hours as part of his “enhanced interrogation” plan.[iv]

Picasso would have warned us of all this shameful business, for in Guernica lay a two-fold principle: war is hell and torture is wrong. At a time when the Bush administration assured the public that its soldiers would be greeted with flowers[v] and that the “operation” was for Iraqi freedom[vi], missing was Picasso’s ominous reminder in Guernica that there is no such thing as an easy war. No one can dispute this now after over half a million Iraqi civilian casualties, according to a John Hopkins University study[vii], and nearly 4,000 U.S. military deaths.[viii]

But while Guernica has always been famous as an anti-war icon, it is little known as an anti-torture one. Indeed, Picasso’s masterpiece has always undermined a legal linchpin of the Bush administration’s torture program. Since the beginning of its detainee policy, the administration’s legal arguments have rested on a key unilateral determination that the Geneva Conventions did not apply as a matter of right to whomever the government deemed to be an “unlawful combatant.”[ix] In 2006, the Supreme Court pronounced that determination to be wrong. In particular, it held that detainees captured in armed conflict with the U.S. were entitled to at least the protections of Common Article 3 of the Geneva Conventions.[x] Common Article 3, which bans torture and outrages upon personal dignity among other things[xi], has long been widely regarded as the humanitarian minimum in armed conflict.[xii] So why did the Bush administration’s lawyers need the Supreme Court to tell them to abide by Common Article 3?

Because they ignored Guernica. The government’s position was that Common Article 3 applied only to conflicts within a country’s territory, not to transnational struggles like the “war on terror.” The provision, they argued, was drafted with civil wars in mind, in particular the Spanish Civil War.[xiii] It turns out that the delegates in Geneva sixty years ago would have known perfectly well that while the Spanish Civil War was called Spanish, it was actually transnational. Several foreign powers intervened in the Spanish Civil War on different sides of the conflict.[xiv] Perhaps the most infamous transnational involvement in the Spanish Civil War occurred on April 26, 1937, when Germany and Italy sent planes to firebomb the Spanish town of Guernica, killing hundreds of civilians and terrorizing the rest.[xv] Nearly 70 years later, came news of a different transnational horror; photographs of U.S. soldiers celebrating the torture of naked hooded beaten Iraqi prisoners at Abu Ghraib were broadcast around the world.[xvi] Leading U.S. interrogation officials in Iraq had been drawn from the war in Afghanistan, where they had been instructed from above that their detainees were generally not, as a formal matter, ultimately entitled to the protections of the Geneva Conventions, even those contained in Common Article 3.[xvii]

Five years after the Guernica cover up at the U.N., the war in Iraq languishes on, the U.S. still refuses to effectively prohibit torture[xviii], and the Department of Justice continues to act to shield high level officials responsible for authorizing abuses.[xix] Picasso could have predicted these results. Covering up past atrocity lies on the path to future atrocity. The ugliness and distortions hidden beneath the baby blue U.N. drapes five years ago were inevitably to reveal themselves in the shameful, vivid and permanent images of today’s reality.

But though truth comes out eventually in different ways, the world cannot afford another literal or metaphorical Guernica cover up. This Super Tuesday, ask which candidate knows this recent piece of art history. The next U.S. president must have the Picasso principle emblazoned in his or her mind: war is hell and torture is wrong

[i] http://www.whitehouse.gov/news/releases/2003/02/20030205-1.html

[ii] http://www.slate.com/id/2078242/; http://query.nytimes.com/gst/fullpage.html?res=9F02E2DB1F38F936A35751C0A9659C8B63; http://www.commondreams.org/headlines03/0203-13.htm; http://www.commondreams.org/views03/0209-04.htm

[iii] http://www.whitehouse.gov/news/releases/2003/02/20030205-1.html (POWELL: “Al Qaida continues to have a deep interest in acquiring weapons of mass destruction…I can trace the story of a senior terrorist operative telling how Iraq provided training in these weapons to Al Qaida. Fortunately, this operative is now detained, and he has told his story. I will relate it to you now as he, himself, described it… The support that (inaudible) describes included Iraq offering chemical or biological weapons training for two Al Qaida associates beginning in December 2000… As I said at the outset, none of this should come as a surprise to any of us.”).

[iv] http://www.intelligence.senate.gov/phaseiiaccuracy.pdf p. 79-82; http://blogs.abcnews.com/theblotter/2007/11/cia-rendition-t.html

[v] http://www.nytimes.com/2005/03/17/opinion/17thu2.html?st=cse&sq=wolfowitz+flowers&scp=1

[vi] http://seattlepi.nwsource.com/national/113497_opname21.shtml

[vii] http://www.nytimes.com/2006/10/11/world/middleeast/11casualties.html?scp=3&sq=600%2C000+lancet&st=nyt; see also http://www.iraqbodycount.org/

[viii] http://icasualties.org/oif/

[ix] See, e.g. http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.02.07.pdf

[x] See http://www.supremecourtus.gov/opinions/05pdf/05-184.pdf

[xi] http://www.icrc.org/ihl.nsf/0/e160550475c4b133c12563cd0051aa66?OpenDocument

[xii] http://www.icrc.org/ihl.nsf/COM/375-590006?OpenDocument

[xiii] http://www.washingtonpost.com/wp-srv/nation/documents/012202bybee.pdf; http://www.cartoonbank.com/newyorker/slideshows/05YooTaft.pdf

[xiv] http://hamdanvrumsfeld.com/GoodmanJinksSlaughter-FINALHamdamAmicusBrief-Jan52006.pdf, p. 19-22.

[xv] http://www.independent.co.uk/news/europe/guernica-remembered-picassos-legacy-446249.html; http://www.time.com/time/magazine/article/0,9171,918912-1,00.html; http://www.mayorsforpeace.org/english/speech/Gernika.html

[xvi] http://www.cbsnews.com/stories/2004/04/27/60II/main614063.shtml

[xvii] http://query.nytimes.com/gst/fullpage.html?res=9F04EFD7113FF932A15756C0A9629C8B63&sec=&spon=&pagewanted=1; http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.02.07.pdf; http://www.nytimes.com/2005/03/11/politics/11abuse.html?scp=1&sq=miller+abu+ghraib+rumsfeld+gitmo-ize&st=nyt; http://www.washingtonpost.com/wp-dyn/content/article/2005/07/27/AR2005072702083.html

[xviii] See, e.g. http://www.whitehouse.gov/news/releases/2007/07/20070720-4.html; http://www.fas.org/irp/cia/product/dcia090707.html; http://www.nytimes.com/2007/12/07/washington/07interrogate.html?ref=world (“A White House spokesman, Tony Fratto, denounced the measure [to limit C.I.A. interrogation methods those listed in the Army Field Manual] and said it would face a presidential veto if it passes.”).

[xix] http://www.tpmmuckraker.com/2008/01/whitehouse_to_mukasey_why_not.php; http://www.harpers.org/archive/2008/01/hbc-90002285

Senator Edward Kennedy: “Would waterboarding be torture if it was done to you?”

Attorney General Michael Mukasey: “I would feel that it was.”

Despite that, Mukasey still refuses to answer whether waterboarding is torture and is prohibited. A portrait of George Orwell indeed hangs on his wall at the Department of Justice. Good old doublethink.

See the exchange at TPM Muckraker.

• Reuters: U.S. Attorney General says CIA interrogations legal
• CNN: Attorney General won’t say whether waterboarding is torture
• The Day: Mukasey: No Special Prosecutor Planned [in CIA Torture Tapes Scandal]

—
Three main points in Attorney General Mukasey’s letter to Senator Leahy about waterboarding (January 29, 2008):

1) Mukasey thinks torture is okay sometimes (but we have to guess when): “If this were an easy question, I would not be reluctant to offer my views, but with respect, I believe it is not an easy question. There are some circumstances where current law would appear clearly to prohibit the use of waterboarding. Other circumstances would present a far closer question.”

2) Mukasey likes to keep his torture methods secret (legitimate interrogation programs all publish their rules): “Any answer I give could have the effect of articulating publicly — and to our adversaries — the limits and contours of generally worded laws that define the limits of a highly classified interrogation program.”

3) Mukasey thinks waterboarding could be legally approved for use again (torture at the stroke of the presidential pen): “’That process would begin with the C.I.A. director’s determination that the addition of the technique was required for the program. Then the attorney general would have to determine that the use of the technique is lawful under the particular conditions and circumstances proposed. Finally the president would have to approve of the use of the technique.”

—

Michael Mukasey: Keeper of the legal apparatus for the commission of war crimes

When asked at his confirmation hearing whether waterboarding used and approved by the Bush administration against detainees was torture, Michael Mukasey refused to answer because he had not been “read-in” on the details of the program. Well, after nearly three months as Attorney General, Mukasey has had plenty of opportunity to get any information he said he needed.

Having been “read-in” on the U.S. interrogation programs, what does Attorney General Mukasey think of waterboarding now? On January 30 at 10AM, he will have a chance to go before the Senate Judiciary Committee that voted to confirm him and answer precisely that question.

Senate Judiciary Committee Democrats have asked Mukasey in a letter to come prepared to answer two questions:

1. Is the use of waterboarding as an interrogation technique illegal under U.S. law, including treaty obligations?

2. Based on your review of other coercive interrogation techniques and the legal analysis authorizing their use, what is your assessment of whether such techniques comply with the law?

Both these questions are good, but they do not touch on the central issue: accountability. As explained in a previous post, only the threat of criminal sanction can stop the U.S. torture program, and if the senators shy away from demanding that, they will be handing another victory to the torturers. If the senators are serious about ending the torture policy, they must also ask Mukasey the following questions:

3. Was the authorization of waterboarding criminal under the War Crimes Act, the Torture Statute, or other applicable laws?

4. Was the use of waterboarding criminal under the War Crimes Act, the Torture Statute, or other applicable laws?

5. Was the authorization of any of the techniques listed below criminal under the War Crimes Act, the Torture Statute, or other applicable laws? Was the use of any of the techniques listed below criminal under the War Crimes Act, the Torture Statute, or other applicable laws?:

• (1) Forcing an individual to be naked, perform sexual acts, or pose in a sexual manner.

• (2) Placing a hood or sack over the head of an individual, or using or placing duct tape over the eyes of an individual.

• (3) Applying a beating, electric shock, burns, or other forms of physical pain to an individual.

• (4) Subjecting an individual to the procedure known as `waterboarding’.

• (5) Subjecting an individual to threats or attack from a military working dog.

• (6) Inducing hypothermia or heat injury in an individual.

• (7) Conducting a mock execution of an individual.

• (8) Depriving an individual of necessary food, water, or medical care.

4. Will you appoint a special counsel to conduct a full, public, and impartial criminal investigation on the authorization or use by U.S. personnel or assets of any of the above mentioned techniques against detainees?

The CIA torture tapes may have gone down the memory hole, but the Zubaida Papers probably have not. Apparently, “classified daily summaries” about Zubaida’s torture are probably still be out there in the hands of the FBI, CIA, and others. The existence of the Zubaida Papers was reported by the Washington Post.

Perhaps it is easy to delete a few tapes, but a paper trail leading through the offices of various members of government is much harder to destroy.

Somebody must have those “daily summaries.” Congress should subpoena those papers and make them public. His lawyers should request them in court. It is also time for a Freedom of Information Act (FOIA) request. Maybe somebody just might post them on the specialist government transparency site: Wikileaks.org.

Let all of the above happen all at once. Time for the truth. Publish the Zubaida Papers!

Court sentences them to 20-25 years

The AP has it in English, Página 12 in Spanish.

This may seem off-topic to some, but having been born under that dictatorship and raised with stories of torture, disappearances, habeas suspension, surveillance, secret trials of subversives, and (of course) amnesty laws, it’s never seemed so far-fetched to me.

Maybe this is a preview of the justice that we, too, might see thirty years from now — but only if we lay the groundwork now. As is always the case, we will have no transition because, haven’t you heard, we are already a democracy. We will have no truth commission because those are for the brown savages, south of the equator. Instead, we will get Hillary and Nancy. Life will go on as it used to, easy to ignore the torture neatly tucked away under the rug. Mainstream Democrats play nice and ignore the crimes they now reserve the power to commit and try clumsily to win political points pursuing petty misdemeanors instead.

The legal battles and New York Times coverage are important–but not enough. Without protest, without emotion, without people, we get nowhere. The Argentine courts did not wake up one day and realize that amnesty was unconstitutional. It took politics to change the courts, and it takes people to change politics. In this case, a generation of angry youth took to the streets, raised voices and shamed the torturers when the law fell silent, and did its small, but real part to wake the country up from its stupor.

To roughly translate one of the convicted officers, Guerrieri:

“I reject the term repressor. We were soldiers paid by the people, those who stand behind me and around me. We went out there to restore order. We do not look like murderers. We look like soldiers who fulfilled their duty.”

I’m eerily reminded of Kiriakou, NYTimes-dubbed “43-year-old father of four,” and all those nice-looking agents and lawyers whose reputations and careers Prof. Goldsmith is mourning in advance.

The choice is yours: Will you be the agent of change?  Or the one who the torturer thinks he serves?

Photo credit: Página 12

This week, a CIA black sites torture survivor, Mohamed Farag Ahmad Bashmilah, spoke out through a lengthy report by the Center for Human Rights and Global Justice at NYU Law School and in an interview with Salon.com.  His account has been filed in US federal court by the ACLU in a suit against rendition flight runners Jeppesen Dataplan Inc., a subsidiary of Boeing.

The insight Mr. Bashmilah gives into his own torture and the workings of the CIA torture program is horrifying in fact and unprecedented in scope, yet it is largely being ignored by the media.

Often the most traumatic moments for a torture survivors come when they feel almost nobody believes them or care to listen.  We believe you Mr. Bashmilah, and we care.

Will no one listen to Bashmilah?