This article first appeared on openDemocracy
On impunity, and the erosion of ethics in International Human Rights Law – from Guantanamo to Yemen.
Ten years ago Murat Kurnaz, a Turk from Bremen, wrote these words, in his book Five Years of My Life, an innocent man in Guantanamo. “We have to describe how the doctors came only to check whether we were dead or could stand to be tortured for a little longer.” The words shocked at the time, but since then the appalling details of US torture practices as part of the ”war on terror” and the involvement of the medical profession are well known – published by the US Senate as well as by several of the men who were subjected to them.
Today everyone knows about US torture. Everyone knows it is unethical, illegal, unconstitutional.
But the fight for accountability only inches forward.Today everyone knows about US torture. Everyone knows it is unethical, illegal, unconstitutional. But the fight for accountability only inches forward.
Two weeks ago in a landmark case against impunity for torture, two US military psychologists reached a confidential settlement with tortured former prisoners rather than face a jury trial which would have begun this week. (ie Sept.5) For many months lawyers for the two men, Bruce Jessen and James Mitchell, had made multiple attempts to have the case dismissed.
There are British precedents for such payoffs to prevent a trial. Six years ago the UK government came to a confidential agreement with former Guantanamo prisoners to keep MI5 and MI6 documents and personnel out of a court case concerning complicity in torture and rendition. Similarly they later paid a Libyan couple who had been victims of rendition rather than face them in court.
The Mitchell/Jessen case is a sharper focus. The two men designed, oversaw, participated, and trained others to carry out the CIA’s torture programme of men which most notably marked the Bush administration’s attack on International Human Rights Law.
The normalisation of torture, and the demonising of Muslim men are among the terrible legacies of the war on terror. Six Muslim countries – Afghanistan, Iraq, Syria, Libya, Somalia and Yemen – have been militarily devastated when in fact the terror acts of 9/11 should have had a police and legal response.
Instead doctors, other medical personnel, lawyers, bureaucrats, the military and politicians created a lawless jungle as they flouted international law and their own countries’ laws.
The normalisation of torture, and the demonising of Muslim men are among the terrible legacies of the war on terror.
Today’s counterterrorism programmes across the world – used almost entirely against Muslims – build on the new norms created by the US and some of its allies. The deeply serious international legal enterprise of Nuremberg and the accompanying UN Conventions 70 years ago, in establishing individual responsibility and accountability for inhuman acts, was to guard us against a degraded world. The spell-binding new book by lawyer Philippe Sands should be required reading for our times.
Yemen today is an example of where we are. For more than two years a Saudi-led coalition, supported by the US, has been bombing and blockading this devastated impoverished country. The uncounted civilian casualties are also suffering from starvation and a rampant cholera epidemic. Thanks to the work of Human Rights Watch, Amnesty and Associated Press we know too that in the name of counterterrorism Yemen today has a network of secret prisons run by United Arab Emirates and Yemeni forces. Torture is routine and US advisers participate in interrogations of suspected Al Qaeda/ISIS prisoners. Some of these men and boys are reportedly interrogated on US ships while others are held in the UAE military base at Assab in Eritrea.
So, we are still in the post-9/11 mode of Muslim men “disappeared” from many countries, held in secret sites across the world, ending up in Guantanamo Bay where some died in hidden CIA torture facilities on that US base.
The Donald Rumsfeld/Dick Cheney/George Bush narrative of “the worst of the worst”….men who “hate our freedoms” ….set a dangerous anti-Muslim tone which has had lasting effects – not least in how the West treats refugees today. The majority of these men had committed no crime against America, as US academic and legal work established more than a decade ago.
The majority of these men had committed no crime against America, as US academic and legal work established more than a decade ago.
Later this month in a grim victory for the US government’s evolving new counterterrorism practices, a Washington court will hear a case where lawyers have argued unsuccessfully that US constitutional rights were violated. Ahmed Abu Khattala was kidnapped from his home in Libya in 2014 by a secret US Special Forces team and held on board ship for 13 days of interrogation before being charged with 18 counts, including murder in the 2012 attacks in Benghazi that killed US Ambassador Christopher Stevens.
But the Mitchell/Jessen settlement is a landmark precedent. Torturers can be brought some way towards account in the US. The two were paid more than $81 million for their work as contractors to the CIA. They began it in a secret prison in Thailand with a wounded Palestinian, a Saudi citizen. Abu Zubeyda was water boarded 83 times in a month and suffered most of the brutal practices made public in the December 2014 summary of the US Senate report into torture in CIA secret prisons. The Senate report called the practices “brutal and ineffective.”
Zubaydah’s treatment was the template of the “enhanced interrogation techniques” created by Dr Mitchell and Dr Jessen, according to John Rizzo, senior CIA lawyer at the time. Prisoners were kept in small boxes, thrown against walls with a towel round the neck held by the torturer, kept naked with icy water poured over them, forced to hold stress positions, held upright in shackles for days to prevent them sleeping, and worse. None of this was supposed ever to become public knowledge. John Kiriakou, former CIA chief of counterterrorism in Pakistan went to prison for being a whistleblower on waterboarding. Video tapes of the prisoners’ torture, including Abu Zubeydah’s, were ordered destroyed by the CIA’s head of counterterrorism Jose Rodriguez. The Senate report revealed that some of the intelligence officers watching these scenes cried, others left the programme.
Zubeyda had already given important information to the FBI interrogators who stayed with him when he was first captured. The CIA, Mitchell and Jesson were sure there was more to be had, by torture. But Zubeyda had nothing more to tell.
By the end of the year Zubeyda had been shipped to a secret CIA site in Poland. Only years later did the US quietly admit that every charge against Zubaydah was false – he had never been a member of Al Qaeda. FBI officials had known that all along. Astoundingly however today he remains at Guantanamo Bay. The Senate report revealed that Washington had accepted his torturers’ request that if he survived the torture he would never be freed.
Declassified filmed depositions from Jessen and Mitchell, obtained by the NYT and made earlier this year in legal preparations for the case show the men justifying what they did, claiming the experiences in their programme were not painful but “distressing”, “uncomfortable”, “irritating”, “discombobulating”. They claimed too they acted under pressure from CIA counterterrorism boss Jose Rodriquez and others in calls from Washington to keep on pushing for the information which would “keep Americans safe from fresh threats.” The case forced Rodrigues and the CIA lawyer Rizzo also to testify in the depositions.
Jessen says on film he was still “very convinced” the programme would cause “no lasting harm” to the subjects. In another video Rodrigues too says the same. Astounding judgments considering one of the men in the case had actually died. Nobody who has read the detail of the Senate summary report, or Guantanamo Diaryby the wholly innocent former prisoner Mohamedou Slahi who was tortured to breaking point, could have anything but utter contempt for such assertions.
“This twisted logic – saying that because i was kidnapped, tortured and held captive for so many years this is the reason to violate my civil rights some more – is just beyond the pale.”
Video depositions were also made by the two surviving former prisoners in the case, Suleiman Salim from Tanzania and Mohamed Ahmed Ben Soud, a Libyan. Here are stark pictures of quiet men whose lives have been destroyed. Neither can bear describing the pain they suffered – Mr Salim breaks down at the question. Their faces, body language and lives today show just how deep is the lasting harm. Mr Ben Soud speaks of nightmares that he is still in the prison shackled, and of deep anxiety, while Mr Salim reveals how post-prison he is isolated, cannot manage to be with people, keeps to himself and feels “so weak I can’t do anything.”
Slahi’s book, written while still in Guantanamo, was a best seller, translated into many languages. His determined lack of bitterness, sense of humour and insight into the politics behind what had happened to him as the Americans shifted him from country to country for torture in a fruitless attempt to link him to the war on terror, has won him a world audience. But today he is stuck at home in Mauritania, denied a passport. A recent email gives a vivid picture of how this clever, curious man, an inveterate traveller and student, has had his life closed down. This is what he wrote to me recently: “To be honest with you i’m really sick and tired of having been punished for so many years because i was born in Africa. And tired of being afraid all the time. This twisted logic – saying that because i was kidnapped, tortured and held captive for so many years this is the reason to violate my civil rights some more – is just beyond the pale. At this very moment, my doctor told me that I have to seek medical treatment outside the country. But I have no passport to do so. This is not a game. I was operated on in Gitmo and i’m still suffering excruciating pain which my Mauritanian doctors couldn’t figure out.”
Many other former Guantanamo prisoners are still denied passports, like Slahi, and thus deprived of family contact, in some cases job opportunities or, like Slahi health treatment.
In these 15 years I have spent a good deal of time with the families of Guantanamo prisoners, and one thing I have heard many times from wives and children – and some of the men – is that noone released from Guantanamo is the same person who was taken there. Nor does the impact ever end – not just psychologically, as anyone can see in the faces of Salim and Ben Soud, but in how the world treats them – as Mohamedou Slahi’s note illustrates.
Jesson and Mitchell were sued by Salim and Ben Soud who survived the psychologists’ “enhanced interrogation techniques” and by the family of the third man, Gul Rahman, who died in Afghanistan in CIA custody in November 2002.
Rahman was interrogated by Jessen personally for 48 hours. Mitchell too participated in one session and also administered a mental health status exam and provided an assessment of interrogation measures. Later one lead CIA staff officer at the secret site codenamed Cobalt told investigators that “Rahman was the responsibility of Jessen.” The psychologist watched the prisoner subjected to a “hard takedown,” where he was “dragged from his cell.” He had his clothes cut off, his hands taped, and a hood was put on his head. He was run up and down a hallway and “sometimes stumbled and was dragged.” He was also “slapped and punched” in the stomach. When the two psychologists left Cobalt, Rahman was on an interrogation plan prepared by Jessen which included subjecting him to freezing temperatures. Six days later Rahman froze to death, shackled and naked from the waist down. The temperature in his cell was 2.2 degrees centigrade, or 36 degrees fahrenheit. His family were not told he had died.
The former prisoners’ suit was brought by the American Civil Liberties Union. The official ACLU statement on the settlement gives a flavour of the hard fight for accountability. It says, “ Drs Mitchell and Jessen assert that the abuses of Mr Salim and Mr Ben Soud occurred without their knowledge or consent and that they were not responsible for those actions. Drs Mitchell and and Jessen also assert that they were not responsible that they were unaware of the specific abuses that ultimately caused Mr Rahman’s death and are also not responsible for those actions.”
The ACLU is one of the many US lawyers groups who have spent the last 15 years in dogged attempts – mostly unsuccessful – to uphold US laws and International Human Rights Law against successive US administrations. British and other European lawyers have also fought against our governments’ role in complicity in torture, kidnapping and denial of human rights law.
As a result of these lawyers’ work Poland, Canada and the UK have, under pressure, paid damages to a fraction of the ‘war on terror’ prisoners. But none of the other countries which hosted CIA sites, like Afghanistan, Lithuania and Thailand, or which took over US prisoners for torture – Egypt, Morocco and Jordan – have acknowledged, paid compensation or apologised for what these prisoners of the US suffered at their hands.
And as for the US, Washington has regularly refused even visitor visas to men, like Murat Kurnaz, the Turkish citizen living in Germany, who was held for five years in Guantanamo, and who they had to admit to having wrongly imprisoned; or Mahar Arar, the Canadian/Syrian telecommunications engineer who the Americans arrested as he changed planes in New York after a holiday and sent to Syria where he spent a year of torture, much of it in a coffin-sized box. Mr Arar was one of the many victims of the Orwellian-sounding practice of “extraordinary rendition”, which was actually state kidnapping.
We need a truthful narrative of a dark dark period when America leaders opened a Pandora’s Box called counterterrorism. Many thousands of people were and are complicit in the massive web of deception, illegality, cruelty and Islamophobia touched on here.
The CIA lawyer mentioned above, John Rizzo, is one of 12 Bush administration lawyers and other officials including former president Bush and vice president Cheney named in 2015 by HRW as among those who should be investigated for “conspiracy to torture and other crimes.” Mitchell and Jessen are named as part of the conspiracy.* 
The powerful lawyers and politicians who should be accountable to the world for normalising torture and deliberately dismantling human rights safeguards for us all have been embraced by the power of the establishment into top jobs in legal firms or academia or government and probably feel themselves protected in their impunity. The precedent of the Mitchell/Jessen case should prove them wrong.
What is at stake now is preserving for our common civilisation the international architecture of human rights law – Nuremberg and the UN Declaration of Human Rights, set up in the idealistic chastened aftermath of World War 2 as the basis of a wholly different world from the barbarism of that war. The growing barbarism of today is more threatening because no powerful government admits their culpability in it.
 East-West Street, On the origins of genocide and crimes against humanity, pub Weidenfeld and Nicholson
About Victoria Brittain
Victoria Brittain is a journalist and writer. She has spent much of her working life in Asia, Africa and the Middle East, writing for The Guardian and various French magazines. She has been a consultant to the UN on The Impact of Conflict on Women, also the subject of a research paper for the London School of Economics. She was co-author of Moazzam Begg’s book, Enemy Combatant. Her most recent work is “Shadow Lives, the forgotten women of the war on terror”. She is a trustee of Prisoners of Conscience and of the Ariel and Melbourne Trust.
This work is licensed under a Creative Commons Attribution 4.0 International License.