It is called torture, Mr. President

New admissions of torture put Obama in a bind.
An Afghan detainee is carried on a stretcher before being interrogated by military officials at the prison in Guantanamo Bay, Cuba, in 2002. A study of former Guantanamo detainees in the summer of 2008 unearthed evidence that they were tortured and abused. (Lynne Sladky/Associated Press)

With a few exceptions — Rush Limbaugh, perhaps, or Fox News Channel — most journalists, academics and lawyers in this country long ago stopped taking President George W. Bush seriously when he contended, as he still does, that agents of the U.S. government don't practise torture.

They have and probably still do. They certainly still have official permission and, despite Barack Obama's campaign rhetoric, may for some time yet.

The latest authority to contradict the president is one of his own top officials, Susan J. Crawford, the retired military judge responsible for supervising the military prosecutions of inmates at the Guantanamo Bay prison camp in Cuba.

"We tortured Qahtani," Crawford told the Washington Post's Bob Woodward this week, referring to Mohammed al-Qahtani, a so-called "high-value" prisoner who is widely regarded as one of the intended 9/11 hijackers.

"His treatment met the legal definition of torture," Crawford said. "And that's why I did not refer the case" for prosecution.

In other words, the evidence extracted from al-Qahtani is so poisoned by the way it was obtained that even the U.S. military, operating on foreign soil under much looser juridical rules, doesn't think it can obtain a conviction that will stand.

Military prosecutors wanted to lay charges late last year, but Crawford stayed them.

Omar Khadr is shown in a courtroom sketch in Guantanamo Bay, Cuba Thursday, May 8, 2008. (Janet Hamlin/CBC/Canadian Press) ((Janet Hamlin/CBC/Canadian Press))

'Life-threatening condition'

In the case of al-Qahtani, his jailers used isolation, sleep deprivation, fear-instilling psychological tactics and dogs, as well as prolonged exposure to cold and icy water while nude, leaving him, as Crawford put it, in "life-threatening condition."

Other prisoners were subjected to the controlled-drowning and resuscitation torture called waterboarding, or had their legs beaten repeatedly while hanging from a wall, shackled.

In at least two cases, both in Afghanistan, the torture — or, as Bush calls it, "enhanced interrogation" — left prisoners dead. (In one of these cases, military torturers in Afghanistan killed a man known as Dilawar who interrogators had already decided was probably an innocent man, a taxi driver unfortunate enough to have been in the wrong place at the wrong time.)

Al-Qahtani, on the other hand, is almost certainly not innocent. He is reputed to have been sent to America by Osama bin Laden as the "twentieth hijacker," but was arrested by suspicious U.S. Customs agents on his way into the States and deported before he had a chance to participate in the 9/11 attacks.

He was re-arrested several weeks later in Afghanistan, where he served as a lieutenant to bin Laden.

Tainted evidence

Many here believe al-Qahtani should be prosecuted for war crimes. But, as David Cole of Georgetown University's Law School observes, "because of the box created by the Bush administration, because so much of the evidence is tainted, it will be impossible to secure convictions against people who are almost certainly war criminals."

Effectively, the Bush administration gave itself permission to torture detainees in 2002, about a year after the president launched his global "war on terror."

A now-notorious Justice Department memo declared that government agents could inflict pain, as long as it didn't rise to the level of "organ failure, impairment of bodily function, or death."

The government's lawyers obediently concluded that laws outlawing torture do not bind the president because of his constitutional authority to conduct a military campaign.

Bush and Vice-President Dick Cheney vigorously agreed with this assessment and for U.S. government agents and soldiers worldwide, the tone was set.

As accounts of abuses piled up in the months and years that followed, Bush remained resolute.

Rebuked by the United Nations, human rights groups, jurists, members of Congress and eventually his own Supreme Court, he would insist: "We don't torture."

'Black' prisons

Behind the scenes, though, government lawyers worked to thwart any efforts to prevent what was actually going on in America's extraterritorial prisons.

When Congress finally acted in 2005, legislating against torture, Bush issued a secret executive order circumventing the new law. When Congress tried to rein in the excesses of CIA interrogators in the secret, so-called "black prisons" that the agency operates abroad, Bush used his veto to nullify Congress's intent.

Anyone who objected on grounds of rule of law, or due process, was painted as a Nervous Nellie who didn't understand the threat to the American people.

Waterboarding, Cheney declared at one point, was "a no-brainer."

Other conservatives sneered at the idea of "reading terrorists their rights."

As recently as this week, his last in office, Bush remained undeterred: "My view is the techniques were necessary and are necessary," he told Fox News.

Someone else's problem

Now, particularly as a result of Crawford's admission, the mess Bush and his team are leaving behind is clearly evident.

And while Barack Obama has promised swift corrective action — he intends, according to leaks from his transition team, to order the Guantanamo detention centre closed and to reverse Bush's torture edicts as a first order of business following Tuesday's inauguration — the legal bog he's inheriting is deep and fetid.

There are, according to the government, approximately 250 detainees remaining at Guantanamo. The black prisons located in spots like Diego Garcia, an atoll in the Indian Ocean, hold an unknown number of others.

Some of those still being held are very dangerous men, indeed, and now it may be impossible to successfully prosecute those who have been tortured.

Guantanamo officials, who used to tell visiting reporters like me that the prisoners there were "the worst of the worst," have released about two-thirds of the detainees they once held.

Some turned out to be no threat, some were deemed to be innocent, some returned to the battlefield.

More legal rights

In recent months, the Bush administration has been keen to dump some of those who remain onto the laps of allies in the West or the Middle East. But the response has been tepid.

Canada, for example, has shown no enthusiasm for accepting any of them, even Omar Khadr, who is a Canadian citizen.

Here in the U.S., there is stiff political resistance to any notion of moving the detainees onto American soil. That would mean giving them even more legal rights than they already have.

Then there's the small matter of what to do about the torture that has already been committed. Some in this country are demanding an official inquiry.  

"Now that a senior administration official has acknowledged war crimes have been committed — and torture is a war crime — at a minimum there ought to be a criminal investigation and charges where appropriate," Prof. Cole of Georgetown Law said in an interview.

Anticipating this, the CIA has been destroying evidence of torture. There are also reports some senior intelligence agents have been taking out insurance policies to cover potential legal fees.

Some supporters of the administration's policies want President Bush to issue blanket, pre-emptive pardons before he leaves office. But Cheney scoffs at the idea of inquiries or charges and is advising Obama to pause before he reverses any executive orders.

"Before you start to implement your campaign rhetoric, you need to sit down and find out precisely what it is we did and how we did it, because it is going to be vital to keeping the nation safe and secure in the years ahead," Cheney told CBS Radio recently.

Faced with the sobering reality of governing, Obama may be taking note. "I think that was pretty good advice," the president-elect said about Cheney's remarks.

Like Bush, Obama says the U.S. government will not torture under his administration, but he would rather not get into too much detail at this point about what exactly he means when he says that.

He's now shying away from any bold restrictions on the CIA, saying he doesn't want the country's spooks "looking over their shoulders and lawyering."

He also doesn't seem terribly interested in official inquiries into any Bush-era lawbreaking: "We need to look forward as opposed to looking backwards," Obama told a television interviewer this week.

Closing Guantanamo, he now says, will be "more difficult than a lot of people realize."