Obama’s Torture Dilemma

The incoming Obama administration is coming under new pressure to investigate the treatment of terror detainees following a surprise public admission by a top Pentagon official that a high-profile detainee was "tortured" at Guantánamo Bay.

In an unusually candid interview, Susan J. Crawford, the convening authority for the U.S. military commissions, told the Washington Post’s Bob Woodward that a number of "enhanced" interrogation techniques used against one Guantánamo detainee—Mohammed al-Qahtani—"met the legal definition of torture."

"We tortured al-Qahtani," Crawford told Woodward.

Just last weekend, Obama signaled in a television interview that he was not inclined to launch sweeping new criminal investigations of detainee treatment and interrogations that took place under the Bush administration. "My instinct is for us to focus on how do we make sure that moving forward we are doing the right thing," Obama told ABC's George Stephanopoulos. "That doesn't mean that if somebody has blatantly broken the law, that they are above the law. But my orientation's going to be to move forward."

But Crawford's comments could force the new administration to look backward, as well. As the senior Pentagon official in charge of the military commissions, Crawford had direct access to internal files on Qahtani's treatment that have never been publicly released, including practices that she says left the Saudi detainee in a "life-threatening condition."

"I expect that a next step is for the Justice Department of the new administration to take a look at all of the facts and to assess any senior-level accountability for the abuse of detainees," said Sen. Carl Levin, chairman of the Senate Armed Services Committee, in a statement to NEWSWEEK. (Levin recently released a report concluding that senior Bush administration officials were responsible for the abusive treatment of detainees.)

Crawford's willingness to publicly use the word "torture" could have immediate legal implications. Torture is not just a violation of international treaties such as the Geneva Conventions; it is also a federal crime prosecutable by the Justice Department. In fact, just last week, Justice put out a press release highlighting its successful prosecution of Roy M. Belfast (a.k.a. "Chuckie Taylor"), the son of former Liberian dictator Charles Taylor, for acts of torture committed under his father's regime during the 1990s. Belfast, who headed a paramilitary organization known as the Anti-Terrorist Unit, was sentenced to 97 years in prison for acts that included burning victims with molten plastic, lit cigarettes and scalding water as well as severely beating them with firearms and shocking them with an electric device. "Our message to human rights violators, no matter where they are, remains the same: We will use the full reach of U.S. law, and every lawful resource at the disposal of our investigators and prosecutors, to hold you fully accountable for your crimes," acting assistant attorney general Matthew Friedrich of the criminal division said in the press release.

While not nearly as gruesome, the treatment of Qahtani included a range of highly aggressive—and controversial—interrogation practices that were not authorized by the U.S. Army Field Manual but were personally approved by then-Secretary of Defense Donald Rumsfeld. These techniques included sleep deprivation, forced nudity, prolonged exposure to cold, the use of a ferocious guard dog to induce phobias and prolonged isolation. A 2005 Pentagon report documented that Qahtani was also tied to a leash and made to perform dog tricks, forced to stand naked in front of female interrogators and forced to wear a woman's bra and a thong on his head during the course of his interrogation. The report conceded that Qahtani was subjected to "degrading and abusive" treatment. But it held that there were no violations of law; the Pentagon general in charge of the review, Gen. Bantz Craddock, overruled a recommendation that the Guantánamo commander at the time, Maj. Gen. Geoffrey Miller, be disciplined for failing to properly supervise the handling of Qahtani's interrogation.

Anthony Romero, executive director of the American Civil Liberties Union, said that Crawford's statements appeared to have elements of "CYA [cover you're ass]." Even so, Romero believes that Obama cannot simply look past her assessment. "When you have an admission of violation of law, you have to look backward. You're going to have to appoint a prosecutor. You can't just say that was then, this is now."

In her Post interview, Crawford said that her finding that Qahtani was tortured prompted her to block a request by Pentagon prosecutors to bring charges against him for being part of the 9/11 plot. (Qahtani had unsuccessfully tried to enter the country at the Orlando airport in August 2001; the 9/11 commission—and other investigators—later concluded that he was seeking to become the 20th hijacker.) Her statements to Woodward about how the treatment of Qahtani in 2002 had forced him to be hospitalized with bradycardia, a heart condition that is potentially fatal, also seems to raise questions about the accuracy of the earlier Pentagon report on the detainee. That report had stated that a January 2003 medical examination of the detainee (who was not publicly named at the time, but has since been acknowledged to be Qahtani) "found no medical conditions of note."

In a statement, Pentagon press secretary Geoff Morrell continued to maintain that Qahtani's treatment was legal and repeated the Obama team's mantra that the new administration—which will retain Bush's current Defense Secretary, Robert Gates—intends to look forward, not backward. "We have conducted more than a dozen investigations and reviews of our detention operations, including specifically the interrogation of Mohammed al-Qahtani, the alleged 20th hijacker. They concluded the interrogation methods used at GTMO [Guantánamo], including the special techniques used on Qahtani in 2002, were lawful. However, subsequent to those reviews, the Department adopted new and more restrictive policies and procedures for interrogation and detention operations." But, Morrell added: "Some of the aggressive questioning techniques used on al-Qahtani, although permissible at the time, are no longer allowed in the updated Army field manual."

Qahtani was never subjected to waterboarding, the most extreme of U.S. government interrogation methods that involves pouring water into the nose and mouth of a subject until the he gasps for air, forcing water into his lungs. That technique was used against three other high-value detainees who were in CIA custody—Abu Zubaydah, Khalid Sheikh Mohammed and Abd al-Rahm al-Nashiri. Crawford said in her interview that "I assume torture" took place in the interrogations of Khalid Sheikh Mohammed—a comment that defense lawyers took to mean that she was never actually provided access to the files on him and the other detainees in CIA custody. In approving charges against some of them (Abu Zubaydah has never been charged), she apparently relied on FBI reports on interviews with detainees that took place after they were transferred from CIA "black" prisons overseas to Guantánamo in September 2006. In those cases, Crawford indicated that there was evidence in statements gleaned from the noncoercive FBI interviews that supported the charges while Qahtani had recanted the statements he made to his interrogators. Still, on Wednesday a military lawyer for Nashiri formally filed a request that she withdraw the charges against their client as well on the grounds that he too was tortured. "By itself, waterboarding amounts to torture," Lt. Cmdr. Stephen Reyes wrote in a memo to Crawford. He added that defense lawyers believed that information about Nashiri's treatment, including his waterboarding, was not made available to Crawford before she recently referred capital charges against him to a military commission for a trial accusing him of responsibility for the bombing of the USS Cole in October 2000. "In light of your recent comments [to The Washington Post,] it seems that such evidence would have been crucial to your referral decision."

In Congress, the House Judiciary Committee, led by Michigan Rep John Conyers, earlier this week issued a lengthy report cataloging alleged abuses by what he termed Bush's "imperial presidency," including alleged detainee detention and interrogation abuses and warrantless wiretapping of U.S. citizens. Conyers and a handful of other House Democrats have introduced legislation to set up a tribunal, modeled after the 9/11 Commission, to investigate alleged Bush administration abuses of power.

However, neither Obama nor Democratic congressional leaders have so far indicated any enthusiasm for creating such a tribunal. Two sources familiar with the incoming administration's views indicated that, until now, Obama's team has been reluctant to launch broad investigations of the intelligence agencies that could damage morale and slow down intelligence gathering. But one of the sources, who spoke on condition of anonymity about sensitive matters, said that the incoming administration certainly would not turn away from examining any evidence of wrongdoing that it might run across.

Crawford's new public statements would certainly seem to meet that standard.