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After September 11: Our State of Exception

Abu Zubaydah suggests that “the plywood was put there” because the “interrogators realized that smashing me against the hard wall would probably quickly result in physical injury.” No doubt he is right: the plywood is the answer to the perennial problem of the torturer: how to inflict sufficient pain without causing injury of the sort that will make further “exploitation” of the detainee difficult or even impossible. But where precisely, between the first time Abu Zubaydah was smashed into the wall and then placed inside the standing black coffin-like box for “close confinement” and then emerged to be “walled” again, did that plywood come from?

I suspect it was the idea of someone back at CIA headquarters, in Langley, Virginia. As CIA officer John Kiriakou reminds us,

Each one of these steps…had to have the approval of the Deputy Director for Operations. So before you laid a hand on him, you had to send in the cable saying, “He’s uncooperative. Request permission to do X.” And that permission would come…. The cable traffic back and forth was extremely specific….

Beyond the hour-by-hour approval of particular techniques issuing out of headquarters came an assiduous effort to brief “NSC policy staff and senior Administration officials,” for, as the CIA inspector general put it, “the Agency specifically wanted to ensure that these officials and the [Congressional Oversight] Committees continued to be aware of and approve CIA’s actions.”14 One detects here a further echo of the 1970s and the scandals after the revelations of agency assassinations, coups, and other misdeeds before the Church and Pike committees: CIA leaders and officers were determined that this time, however much national attitudes on these matters might change—after the emergency had passed—they could never be accused of “rogue” behavior. This time, high officials couldn’t claim they didn’t know; instead of “nothing on paper,” this time CIA officers would insist on briefings, meetings, records, memos, documents—explicit approval. In so doing they ensured that responsibility was spread very high and very wide indeed.

Again, Abu Zubaydah:

After the beating I was then placed in the small box. They placed a cloth or cover over the box to cut out all light and restrict my air supply…. The wound on my leg began to open and started to bleed….
I was then dragged from the small box, unable to walk properly and put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position. The pressure of the straps on my wounds was very painful. I vomited. The bed was then again lowered to horizontal position and the same torture carried out again with the black cloth over my face and water poured on from a bottle. On this occasion my head was in a more backward, downwards position and the water was poured on for a longer time. I struggled against the straps, trying to breathe, but it was hopeless. I thought I was going to die. I lost control of my urine. Since then I still lose control of my urine when under stress.

This is the famous waterboarding, a time-honored technique deployed by the priestly interrogators of the Spanish Inquisition, by French paratroopers during the Algerian War, by the Argentines during their “dirty war,” by the Khmer Rouge and the Salvadorans during their civil wars. Techniques vary but the principle remains the same: drown the prisoner, provoking suffocation and panic, then interrupt the drowning in time to save his life. That American interrogators were waterboarding prisoners first appeared in the press, to my knowledge, in May 2004, in a report in The New York Times. This of course is another side of “public secrecy”: the two narratives—what was done and what we know—crossed very early on.

Of the eleven “enhanced interrogation techniques” deemed legal by the Department of Justice, ten, according to John Yoo, “did not even come close to the [legal] standard [of torture],” but “waterboarding did.” In a rather striking admission to Department of Justice investigators that has received too little attention, Yoo confessed that “I had actually thought that we prohibited waterboarding. I didn’t recollect that we had actually said that you could do it.” He went on:

The waterboarding as it’s described in that memo is very different than the waterboarding that was described in the press. And so when I read the description in the press of what waterboarding is, I was like, oh, well, obviously that would be prohibited by the statute.15

It should be said, of course, that the International Committee of the Red Cross, legally charged with investigating and judging the treatment of prisoners, had no problem whatever declaring that this treatment “amounted to torture and/or cruel, inhuman, or degrading treatment.” But Yoo’s observation underlines again that the differences between what is prescribed in the legal and policy documents—in which Yoo memorably describes waterboarding as a “controlled acute episode” short of torture—and what actually happens at the black sites is often dramatic. In waterboarding Abu Zubaydah, the interrogators used more water and performed the procedure much more frequently—eighty-three times, in this case—than prescribed in the documents, part of a general “drifting downward” into greater cruelty that we see throughout the various plotlines of this story.

It seems a general rule of what we might call the early state of exception that those officials—at the White House, the CIA, the Pentagon, and the Justice Department—who could point to the desert of knowledge, who could dwell on and profit from the fear of that dark unknown, were victorious, and indeed nothing more dramatically embodies the style of the exception: Assume the worst. Act preemptively, aggressively. Don’t hesitate. When in doubt, act. If there is a risk, the possible consequences are so grave that you must not let worries over evidence slow you down.

This kind of thinking reached a kind of apotheosis in Vice President Cheney’s so-called “one-percent doctrine,” which Ron Suskind summarized as follows: “If there was even a one percent chance of terrorists getting a weapon of mass destruction…the United States must now act as if it was a certainty.”16 This remarkable attitude toward risk—that only lack of action, and not mistaken action, posed dangers to the country—had peculiar and contradictory effects when embodied in the vast worldwide detention regime spawned by the state of exception: the five thousand arrested and detained by the Immigration and Naturalization Service in the United States; the tens of thousands detained in Abu Ghraib and Bagram and other prisons in Iraq and Afghanistan; the hundreds detained in Guantánamo Bay, Cuba; the scores detained in the “black sites.” This vast system, which stretched around the world and at one time held nearly one hundred thousand prisoners, was intended to extract the vital intelligence that would supply the “front line” in the War on Terror.

But the sweeping arrests and indefinite detention—the failure to make discriminations of risk (which would have meant a willingness to get it wrong) in favor of wholesale, blanket judgments based on pervasive fear—had the perverse effect of crippling the intelligence-gathering system itself. That system was flooded with detainees who knew nothing “actionable,” or even relevant—and who could not be released, either, because, as in Abu Ghraib, the officers who were responsible for detaining them objected or because, as Colonel Lawrence Wilkerson says of the Guantánamo detainees, “it was politically impossible to release them.” Wilkerson, who served as chief of staff to Secretary of State Colin Powell, notes that if those detainees who should never have been imprisoned were released, “the detention efforts at Guantánamo would be revealed as the incredibly confused operation that they were.”17

The injustice of the system, of course, was pervasive, and this was increasingly recognized around the world and had its own grave political effects in what was, after all, a political war—a war in which al-Qaeda’s primary goal was to recruit young Muslims to its cause. But it is important to recognize that it was failing on its own terms. A system meant to be gathering the most vital and precious resource to fight the existential dangers of the War on Terror in fact was debilitating itself.

Though his moment of secret fame is long past, Abu Zubaydah is still with us. After three and a half years in the black sites, he was moved in 2006 to Guantánamo, where he is now in his ninth year of imprisonment. Thinking of him there, it is difficult to embrace fully the presiding philosophy of the Obama administration on these matters: that when it comes to torture we must “look forward,” not back. Impossible, thinking of Abu Zubaydah and the questions he embodies, not to think as well of his American partners in these scenes a half-dozen years ago. Many of course have moved on, to private law firms, to corporate security jobs, to university faculties. But the story is not over. The documents are full of the drama of the interrogators and the officials of the CIA demanding that they be granted, if not advance immunity for what they were about to do—a so-called “letter of delination”-—then at least a “golden shield” that would protect them from any future attempt at prosecution. They received one, indeed a series of them, in the so-called “torture memos” produced by the Justice Department and, later, in the Military Commissions Act passed by Congress in 2006.

As we look back today at these ghostly figures, at the policymakers sitting in their offices who ordered these techniques, and the lawyers who deemed them legal, and the interrogators who practiced them on men chained naked in cold sunless rooms, we can have the sense, haunting as it is, that they are all looking forward at us, as we stand here today judging what they did. If we know anything, it is that they knew this moment would come. They were determined to prepare for it, and in a sense they succeeded brilliantly. The legal memos, however grotesque in their reasoning and however widely denounced, have in effect held sway, and imposed a painful unremitting moral limbo on all of us.

Waterboarding, prosecuted within the United States as recently as 1983—and reaffirmed, explicitly, to be illegal by the present attorney general in his confirmation hearings—now amounts, in these exhaustively documented cases, to no more than the “controlled acute episode” of John Yoo’s description. The former vice-president can speak proudly in his memoirs of his approval of these techniques, asserting, in direct contradiction to findings of the International Committee of the Red Cross, that “they complied with the law, including international treaty obligations such as the United Nations Convention Against Torture.” The current president is on record asserting that waterboarding is illegal—even as his predecessor proudly recounts in his own memoirs that when asked for approval to waterboard Khalid Sheikh Mohammed he replied without hesitation, “Damn right!”

  1. 14

    Special Review: Counterterrorism and Detention Activities (September 2001–October 2003), p. 23. 

  2. 15

    Office of Professional Responsibility, Department of Justice, Investigation into the Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central Intelligence Agency’s Use of “Enhanced Interrogation Techniques” on Suspected Terrorists, July 29, 2009, pp. 53–54. 

  3. 16

    See Ron Suskind, The One Percent Doctrine: Deep Inside America’s Pursuit of Its Enemies Since 9/11 (Simon and Schuster: 2006), p. 62. 

  4. 17

    See the Declaration of Colonel Lawrence B. Wilkerson in Adel Hassan Hamad v. George W. Bush, Donald Rumsfeld, Jay Hood, and Brice Gyurisko, US District Court for the District of Columbia, CV 05-1009 JDB, March 24, 2010. 

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