In a recent article on free will and determinism for Areo, Ben Burgis concludes that “everything that’s been done in the last eighteen years in the name of fighting terrorism … was justified based on consequentialist calculations—that it was better to kill, maim, torture, dislocate or indefinitely detain innocents than to let a larger number of innocents die in the terrorist attacks that such measures might prevent.”
I shall argue that Burgis is wrong to claim that the war on terror was motivated by a belief that deterrence required punishment of the adversary. While policy was consequentialist in aiming for deterrence, the policies developed in pursuit of the war on terror were not guided by the idea that sadistic punishment would convince terrorists to give up terrorism, or potential terrorists not to become terrorists.
Burgis begins by asking us to “to think about everything that’s been done in the last eighteen years in the name of fighting terrorism.” He glosses over profound intricacies in foreign policy decision making to assert that “two countries were first bombed and then invaded and occupied, resulting in vast numbers of deaths and mutilations and even larger numbers of refugees.” This makes it sound as if America inflicted its visceral rage at 9/11 on two helpless countries simply to make a point, and that all the casualties and refugees have been the result of ruthless American warmongering. This fails to take into account the role of embedded terror networks in Afghanistan, led by a Taliban regime that terrorized the Afghan population and sheltered al Qaeda (which orchestrated the assassination of Ahmad Shah Massoud, the leader of the resistance to the Taliban, two days before 9/11); of Sunni-Shi’ite divisions in Iraq, which were exploited by both Iran and by Abu al Zarqawi’s al Qaeda in Iraq; and of the foreign fighter networks in several Middle East countries (see this analysis of the Sinjar records).
A multifaceted analysis of the relevant foreign policy decision points is beyond the scope of this article. The Bush administration had to assess the probability that there were WMDs in Iraq (which turned out to be untrue); devise not only an invasion of Iraq but a post-war reconstruction plan (which turned out to be disastrous); plan for a surge of troops in 2007 (which turned out to be successful); and not only apprehend those involved in, but to fully understand, the broad network of linkages between the global Al Qaeda terror network at the time of the 9/11 attacks, the Haqqani network (and other Afghan networks, e.g. Gulbuddin Hekmatyar’s group), and the Taliban regime, which protected and encouraged Osama Bin Laden and Ayman al-Zawahiri and uncover their sophisticated network of training camps, safe houses, recruiters, facilitators, trainers, financiers and travel routes (they were very successful in this).
A plethora of books have been written on the terror network, including Bin Laden: The Man Who Declared War on America, Architect of Global Jihad: The Life of Al-Qaeda Strategist Abu Mus’ab Al-Suri, The Longest War, Holy War Inc., The Looming Tower (which emphasizes the role of Zawahiri’s Egyptian Islamic jihad), The Secret History of Al Qaeda, Inside Al Qaeda and the Taliban, The Search for Al Qaeda: Its Leadership, Ideology and Future, Inside Al Qaeda: Global Network of Terror, Al Qaeda: The True Story of Radical Islam, Ghost Wars, and books by Ahmed Rashid, such as Taliban and Jihad. There has also been extensive work on Al Qaeda’s networks in Canada, Asia, Europe, Bosnia and Chechnya. Books on the Iraq War include War Journal: My Five Years in Iraq, The Forever War, Cobra II: The Inside Story of the Invasion and Occupation of Iraq and War and Decision: Inside the Pentagon at the Dawn of the War on Terrorism. Cheney: The Untold Story of America’s Most Powerful and Controversial Vice President is also helpful. There are countless more.
Burgis asserts that “America has also carried out drone strikes in Pakistan, Somalia, Libya and Yemen” and that these “were used to kill people based on unproven suspicion,” despite the fact that the United States was not “at war with any of these countries.” He even claims that “in the case of signature strikes, the people planning them didn’t even know the intended victims’ names.” This is untrue. There are detailed lists of senior al Qaeda, Taliban and allied jihadist leaders killed in US airstrikes in Pakistan from 2004 to 2017: the 2017 list, catalogued by the invaluable Long War journal, includes Abu Bakar Haqqani, “a senior commander in the Haqqani network”; Abdullah, “a ‘master of electronics’ for the Movement of the Taliban in Pakistan”; Abdul Raheem, “a senior al Qaeda military commander in the Afghan-Pakistan region”; and Qari Abdullah Subari, “a senior commander for the Afghan Taliban.” For another list of militant leaders killed in Pakistan, see here.
Moreover, while the US may not be officially at war with Pakistan, Somalia, Libya and Yemen, these countries’ governments are scarcely stable and friendly regimes, minding their own business. Pakistan’s double-dealing in the war on terror is notorious (see, for example, Bear Trap, Who Killed Daniel Pearl? and Descent into Chaos). Fractured countries like Somalia, Libya and Yemen cannot be trusted to conduct effective campaigns against well-organized terrorist networks within their borders. Legal scholar Jack Goldsmith has pointed out that targeted killings legally comply with the UN charter “if the targeted nation consents or the United States properly acts in self-defense.” Goldsmith cites a New York Times report that “Yemen consented to the strike on [Anwar al-] Awlaki,” and that “even if it did not, the strike would still have been consistent with the Charter to the extent that Yemen was ‘unwilling or unable’ to suppress the threat [Awlaki] posed.” Former Yemeni president Abed Rabbo Mansour Hadi has declared that he personally approved every strike: “Every operation, before taking place, they take permission from the president.”
Finally, as of 2018, “the United States [had] sustained its high strike tempo in Somalia and increased transparency on its air campaign in Yemen”—unsurprisingly, given the deeply embedded terror networks in those countries, with their fragile governments. Meanwhile, “strikes in Pakistan … leveled off” and strikes “targeted jihadists sparingly” in Libya. The United States has little interest in shooting from the hip. One of the main reasons for the use of pinpoint drone strikes is to limit civilian casualties, by not bombarding whole areas indiscriminately. Tragically, civilian casualties still occur, but these casualties are largely the fault of terrorists, who deliberately embed themselves within local populations.
Burgis claims that “no one seriously denies that intended targets have been a minority of the victims.” The rate of civilian casualties is extremely hard to determine, but a review by Lawfare reports that,
According to Philip Alston, three entities collect and analyze the bulk of existing non-governmental data about civilian casualties resulting from the U.S. government’s targeted killing policy: (1) the New America Foundation; (2) the Long War Journal; and (3) the Bureau of Investigative Journalism. Their estimates of the civilian casualty rate range widely, from something like 1% to nearly 35% of all deaths caused by targetings.
All civilian casualties are tragic, but intended targets have not “been a minority of the victims.”
More recent estimates from the New America organization put the number of civilian casualties at 245–303, out of total casualties of 2,366–3,700 in Pakistan; 24–55 of the total casualties of 1,258–1,436 in Somalia; and 116–149 of the total casualties of 1,367–1,758 in Yemen. New America lists the number of civilian casualties killed by air strikes in Libya at 516–782, out of a total of 1,612–2,165. Using the midpoints of these estimates, that’s 9% in Pakistan, 3% in Somalia, 8.5% in Yemen and 34% in Libya. Note that total casualties can be divided into militant, civilian and unknown, but estimates of militant casualties far surpass estimates for the latter two categories. Note also that estimates of civilian casualties are highest in Libya, which has been subjected to multilateral air strikes, and lowest in Pakistan, Somalia and Yemen, where drone strikes have been carried out. Finally, New America reports that “the United States has the highest standard of reporting strikes among international parties to the aerial conflict in Libya, and has the lowest number of strikes that have been reported to result in civilian fatalities.”
Drone strikes are not the result of arbitrary deliberations made without accountability. Jack Goldsmith, the 2003–4 head of the Office of Legal Counsel and the author of the best critique of the Bush administration’s terror policies that I’ve read (he resigned from his position in part because of his pushback against prior OLC interrogation opinions), explains this in detail:
Today, all major military targets are vetted by a bevy of executive branch lawyers who can and do rule out operations and targets on legal grounds, and by commanders who are more sensitive than ever to legal considerations and collateral damage. Decisions to kill high-level terrorists outside of Afghanistan (like Awlaki) are considered and approved by lawyers and policymakers at the highest levels of the government.
The killing of Anwar al-Awlaki “and others like it have solid legal support and are embedded in an unprecedentedly robust system of legal and political accountability that includes courts but also includes other institutions and actors as well.” Goldsmith further explains that, “despite the elaborate system of deliberation, scrutiny, and legitimation supporting U.S. targeting practices, the U.S. government can and sometimes does make mistakes about its targets,” but “there is simply no way to wring all potential error from the system and still carry on a war. Even full-blown ex ante judicial review of targeting would not guarantee the elimination of errors.”
These strategies should also be weighed against the use of conventional military force, which would probably result in a higher number of civilian casualties and against the use of special forces raids to capture, rather than kill terrorists, with an eye to interrogation and intelligence collection. Many critics may contend that interrogation inevitably involves torture—a criticism I address below—but, if we do nothing, we allow the regeneration of the terrorist leadership in Yemen, the AfPak tribal belt and other terror hotspots.
Burgis then addresses detention policy under the Bush administration: “Finally, between Guantanamo Bay, Bagram Air Base in Afghanistan, various Bush-era black sites in Eastern Europe and other cases, a disturbingly large number of terrorism suspects have been detained and often tortured, without any of the usual legal protections granted to accused criminals.” According to Burgis, “all of this was justified based on consequentialist calculations—that it was better to kill, maim, torture, dislocate or indefinitely detain innocents than to let a larger number of innocents die in the terrorist attacks that such measures might prevent.” This view is not unlike the (flawed) arguments made by Ron Suskind in One Percent Doctrine and Jane Meyer in The Dark Side.
Burgis suggests that “the cumulative effect of all this is to inspire more terrorism than it prevents,” an assumption that ignores the long history of radical Islamic jihad, which inspired al Qaeda and its network of affiliated groups. Books by and about Sayyid Qutb (for whom the concept of jahiliyya was essential), books like The Al Qaeda Reader and Al Qaeda in Its Own Words detail the ideological underpinnings of al Qaeda, books on Wahhabism, NEFA Foundation primers like this one on the worldwide Muslim Brotherhood network, evidence from the Holy Land Foundation for Relief and Development case and innumerable other pieces of evidence illustrate the central importance of ideological manipulation by radical groups of the Islamic concepts of jihad and da’wah.
None of this would have disappeared if the global War on Terror had never been initiated. Ramzi Yousef and Sheikh Omar al-Rahman were both convicted in a court of law for their connection to the 1993 World Trade Center bombing. Their convictions do not go unmentioned in Al Qaeda propaganda—thus belying the claims that prosecuting terrorists in US courts would restore our image and deprive Al Qaeda leaders of a propaganda and recruitment tool. In any case, the claim that “the cumulative effect of all this is to inspire more terrorism than it prevents” is merely hypothetical. A perusal of Al Qaeda propaganda reveals that Guantanamo was not their number one recruiting tool: “Instead, al Qaeda’s leaders repeatedly focus on a narrative that has dominated their propaganda for the better part of two decades”—namely, that “there is a Zionist-Crusader conspiracy against Muslims.”
Burgis’s main goal is to defend a “two-level rights forfeiture” view, according to which “innocent people have a categorical right not to be punished” and even if “guilty people forfeit this right by committing sufficiently bad acts for which they are morally responsible,” there is no “reason to punish them.” This contrasts with the “retributivist theory” that “criminals should be punished for having done bad things for which they’re morally responsible” and the “consequentialist theory” that “criminals should be punished … because it’s necessary to keep everyone else safe.” The two-level rights forfeiture and consequentialist views “suggest that we move toward a much more humane and minimalistic prison system, focused on rehabilitation” rather than punishment. The “two-level rights forfeiture” view rules out punishment altogether.
What concerns me, here, is the way in which Burgis applies the results of a philosophical debate to a real-world situation in a way largely divorced from the granular facts about how policy was developed to address the serious threats that were posed by the global terror network, especially in the immediate aftermath of the 9/11 attacks. It is extremely naïve to believe that radical Islamists have ever had any objective other than the destruction of societies that are not grounded on radical Islamic ideology, either by settlement and civilization jihad, or by killing and maiming innocents. Burgis writes that punishment of such combatants “can only be justified by consequentialist reasons.” Maybe. But Burgis is wrong to argue that punishment was the primary motive for the war on terror.
The Bush administration made plenty of serious mistakes in its counterterrorism policy after 9/11: including the war in Iraq, the use of black sites and rendition and ad hoc detention policies (discussed by Benjamin Wittes in Detention and Denial). But its counterterrorism policies were not an unmitigated disaster. Guantanamo allowed the US to gain a strategic understanding of the terrorist infrastructure.
I have written elsewhere about “the detention facilities at Guantanamo Bay [which] have been in the news ever since Camp X-Ray opened in January 2002 to house a collection of Taliban and al Qaeda fighters captured in Afghanistan in the fall of 2001.” Unfortunately, Guantanamo has become “associated with many policies initiated by the Bush administration in the Global War on Terror that have been relentlessly criticized,” such as “allegations of torture, black sites, indefinite detention, military commissions.” But “one of the most unfortunate repercussions … is a widespread sentiment that Guantanamo was a place that detained prisoners of war who did not deserve to be there.” As a result, “ever since Guantanamo opened in January 2002 to house the ‘worst of the worst’ (as former Defense Secretary Donald Rumsfeld called the detainees who ended up there), it has become a cause célèbre for human rights attorneys around the world.”
The narrative which has emerged, however, is largely false. As I have written, “the issues surrounding Guantanamo are … complex, nuanced, and give rise to a multiplicity of concerns. Everything from the reasons for opening Guantanamo, to interrogation practices, to changes over time in the conditions under which detainees are detained, to the threat status of any individual detainee, have been written about in innumerable books and articles over the years.” I point out that, “as Gordon Cucullu writes in his book Inside Gitmo … U.S. military forces working in tandem with Afghan forces captured as many as 70,000 Taliban and Al Qaeda fighters in the ‘opening salvos of the war’ in Afghanistan, and ‘more than 10,000 were vetted by American forces in Afghanistan and released.’”
Less than 800 prisoners ended up at Guantanamo because “the U.S. military had no interest in picking up random men in the fog of war,” but instead “sought to capture individuals who had valuable information about the terror threat. They sought to learn from these men, and to detain them, so they did not return to the battlefield and help commit more attacks.” As US Army Major Montgomery Granger points out in the comments section of my article above: “the 70,000 were whittled down via field methods to determine the status of someone whose status was uncertain. Just like the rules for a U.S. Grand Jury indictment, U.S. military tribunals hold a standard of determination to be a preponderance of the evidence, that is, the 51 percent rule.”
Thus, while the screening process was not conducted in a US court of law—which would have been impossible amid the fog of war—it was rigorous. Only 1% of the 70,000 fighters picked up eventually ended up in Guantanamo. The US had no interest in picking up random men and shipping them to a forgotten facility on a slip of land in Cuba at taxpayer expense, without any payoff in terms of threat prevention.
We must distinguish between evidence and intelligence. Guantanamo critics generally argue that detainees should be prosecuted under normal US criminal law procedures. Even if they concede that criminal law is too restrictive and some version of extrajudicial law must apply, they argue that such prosecutions must follow a set procedure, under the auspices of US constitutional law, i.e. detainees should have access to lawyers and their cases should be tried before the courts. But, in a state of war, the normal procedures of law break down. It is not possible to conduct a dispassionate, slow, steady process of discovery, write up memorandums and motions and move through the courts as would be done in a normal criminal case. War is chaotic and such procedures are impractical and, more importantly, this would have been counterproductive, as it would have undermined efforts to understand the enemy and prevent attacks during the sudden war on terror in which America found itself post 9/11.
The officials in the Bush administration were under intense daily pressure as they labored to understand the enemy and prevent a seemingly endless number of plots from becoming actual attacks. The war on terror was not a campaign to punish terrorists for the sake of it, but to capture and detain combatants with the goal of obtaining information that would help prevent attacks. Hence, the need for intelligence. Ultimately, we came to understand that the enemy is a sophisticated network of jihadists, unified and emboldened by ideology and strengthened by operative expertise and financial backing. This network was many years in the making, and included a hardened cadre of jihad-inspired Islamists going at least as far back as 1979 (a critical time in the history of Islamic extremism, 1979 witnessed the start of the Soviet invasion of Afghanistan, the Iranian revolution, the siege of Mecca and the burning of the US embassy in Islamabad). These jihadists were bent on restoring the caliphate and destroying western societies.
How did we come to understand this? Some of it we already knew. But many details came from the interrogation and debriefing of detainees at Guantanamo. A great deal of information can be gleaned from Combatant Status Review Tribunal summaries, Administrative Review Board summaries and Joint Terrorism Task Force assessments of detainees, which can be found here. As I write in the abovementioned article:
by and large, if one studies the history and organization of Al Qaeda and its hydra of terrorist groups (groups like the Taliban, Egyptian Islamic Jihad, Lashkar-e-Taiba, Jaish-e-Mohamed, Armed Islamic Group of Algeria, Moroccan Islamic Combatant Group, Tunisian Combatant Group, Libyan Islamic Fighting Group, Islamic Movement of Uzbekistan, Eastern Turkistan Islamic Party and other groups with which many Guantanamo detainees were affiliated) one sees that there was an extensive network of individuals indoctrinated by radical Islamic ideology, influenced by the works of thinkers like Sayyid Qutb and organizations such as the Muslim Brotherhood, financially backed by innumerable organizations associated with the terrorist infrastructure, operating under Islamic charity fronts like al Wafa and Jamaat Tablighi and al Haramain, and recruited and trained by a network of operatives who had cultivated their expertise in the devising of plots over several decades.
I had “the privilege of providing research assistance to counter-terrorism expert Thomas Joscelyn” for his extensive analysis of Guantanamo detainees. In December 2008, Joscelyn published an article presenting the results of a six-month study of these detainees. This “study examined the transcripts of testimony given by detainees, as well as the allegations against them,” and
for the 240 or so detainees still at Guantanamo at the time of the study, Mr. Joscelyn created a database that identified four red flags that could be used to determine a detainee’s association with the terror network: (1) evidence that “a detainee was committed to waging jihad,” such as whether he was influenced by recruiters from extremist mosques and other institutions to travel in search of jihad, or was a recruiter himself (48 percent), (2) whether he had stayed in a Taliban or Al Qaeda guesthouse (60 percent), (3) whether he had trained at a training camp, or served as a trainer himself (72 percent) and (4) whether he had engaged in hostilities by fighting on the front lines or was otherwise involved in terrorist attacks (46 percent).
In his article, Mr. Joscelyn summarizes the results:
In sum, 227 (94 percent) of the 242 detainees we studied in detail had at least one of the four red flags outlined above; 181 (75 percent) had two or more red flags. Ultimately, however, this methodology is intended only to be suggestive. There are many other factors the Obama administration should study when weighing its options. Collectively, for example, the detainees have extensive ties to Islamic charities that are known to be Al Qaeda fronts. And many of the remaining inmates have interacted with senior Al Qaeda officials, including Osama bin Laden. Only a careful review of all of the intelligence on the detainees, classified as well as unclassified, can illuminate just who these individuals are and what they were up to at the time of their capture.
Almost two years later, the Obama administration released a task force report, which found that 95 percent of the 240 detainees examined by the task force were connected to the terror network. There are thousands of such documents, providing extremely detailed information about the terrorist infrastructure, all of which can be assessed and cross-checked by intelligence professionals.
Certainly, there were many abuses uncovered over the years. The pros and cons of enhanced interrogation techniques in general have been debated ad nauseum. Let’s examine the allegations of ill-treatment at Guantanamo detailed in the July 2009 issue of Harper’s Magazine. In his article, Luke Mitchell argues that the force-feeding of hunger strikers in Guantanamo indicated that, despite promises by the Obama administration, the US was still using torture.
Mitchell writes that “we still use a series of punishments and interrogation techniques—touch and ‘no touch’—that any normal person would acknowledge to be torture,” and that “when those men protest such treatment by refusing to eat, we strap them to chairs and force food down their throats.” Finally, “we know all of this because it is well documented, not just by reporters and activists but by the torturers themselves.”
Detainees, attorneys and activists have been making claims of abuse since the opening of Guantanamo. What is novel in Mitchell’s analysis is the claim that, under the Obama administration, the US government condoned the continued abuse of current detainees by playing semantics. Mitchell explains:
As we learned from the Office of Legal Counsel memos, it is possible to parse “torture” to a considerable degree. What is the allowable incline for a waterboard? How many calories will suffice to avoid starvation? Which insects are permitted to be used in driving a man insane? The correct answer, according to those who parse, is the difference between a war crime and a heroic act of patriotism.
The OLC memos have been discredited but not the thinking behind them. We are still parsing, still weighing, still considering the possibilities. Whereas once we understood torture to be forbidden—something to be hidden and denied—now we understand it to be “complex.” We are instrumental in our analysis, and that instrumentality is held to be a virtue. We don’t torture not because it is illegal or immoral or repugnant to democracy but because “it doesn’t work,” leaving the way clear to torture that does “work.”
According to Mitchell, a line has been drawn between torture and permissible practices, defined by what does and does not work. What is deemed “instrumental” is the result of “complex” analysis, with the upshot that certain practices that should be labeled as criminal are not: “what was once a crime becomes a sensible approach to law enforcement. And in becoming sensible it also becomes invisible.” Mitchell cites “our evolving understanding of force-feeding” as an example “that most clearly demonstrates this process of inversion and invisibility … because it has been so completely mainstreamed.”
Mitchell does not specify what should be considered torture. He seems to take an intuitive approach: if it looks like torture, it is. But he writes that, “forcing a man to drink a diet shake may seem like a minor affront, far removed from the rack or even from waterboarding.” Mitchell, like many critics of Guantanamo, has to take detainees at their word that they have been unconscionably abused and tortured. He dismisses the objection that many detainees have been coached by camp leaders to concoct fabricated claims of their abuse at the hands of infidel authorities.
British historian Andy Worthington, who is among the most vocal and prolific critics of Guantanamo and author of the 2007 Guantanamo Files, refers to a “document that the US administration has persistently used to justify its harsh treatment of prisoners: the so-called ‘Manchester Manual.’” This manual “provided details of all aspects of terrorist training and operations, and included key passages dealing with conduct after arrest.” According to Worthington:
If captured, prisoners were urged to remain silent or to tell false or confusing stories, and, if given the opportunity, they were also encouraged to “complain of mistreatment while in prison” and “to insist on proving that torture was inflicted on them.” In the “War on Terror,” the manual’s use has been two-fold: first, it has convinced the [Bush] administration to behave like the witch hunters of the seventeenth century, treating every single claim of innocence as a lesson learned from the manual, and second, it has been used to refute all claims of torture.
Worthington does not mention that the declassified CSTR and ARB files on detainees include declarations of innocence, but do not state whether such declarations are true. Worthington and Mitchell are happy to take self-interested detainees at their word. They treat many—if not most—claims of innocence and abuse as unquestionably true, dismissing any claim that detainees may be lying. For example, Mitchell cites testimony from Red Cross interviews published in the New York Review of Books, in which detainees describe force-feeding as “traumatizing.”
But there is reason to be skeptical of what detainees say, given the abundant evidence that they manipulate public perceptions with the help of defense attorneys and the media, while threatening the commanders, soldiers and medical personnel charged with supervising their detention and medical treatment while in Guantanamo. Lt. Col. Gordon Cucullu, author of Inside Gitmo: The True Story Behind the Myths of Guantanamo Bay, recounts that one hospital corpsman he interviewed said that, if hospital personnel did not comply with requests, the detainees “would say that they were going to tell their brothers that we defaced the Koran and start an incident. So we gave them what they wanted.” One such request was to feed them 1,000 calories per day, an amount sufficient “to keep them alive but looking wan.” According to Paul Rester, director of the Joint Intelligence Group at Guantanamo, whom Cucullu also interviewed, “The hunger striking population will pick up when they know the time for attorney visits is getting close … That way they’ll look really awful when the attorneys are here—and some media is around. Once the lawyers leave then they’ll start eating again.”
Cucullu’s book is the result of “numerous visits to the detention facility at Guantanamo,” in which he “interviewed scores of military and civilians serving there, men and women of all specialties, ranging in rank from flag officer to private first class.” During his visits, which took place “over the course of several years,” he “toured every camp and facility associated with detainee support, walked almost every square yard of the blocks, ate the same food that was served to detainees, observed interrogations, and walked through Camp IV the day after the May 2006 riots.” Here is Cucullu’s description of the initial testing and ultimate application of force-feeding:
All hunger strikers are clinically stable and receive excellent medical care. Initially they were fed by a nasogastric tube that is soft, flexible, and only four millimeters in diameter. That narrow tube has since been replaced by an even smaller-diameter tube of three millimeters. This is very small and comfortable. It is an apparatus commonly used in American hospitals. Of interesting note is that in the U.S. federal prison system—which has developed settled policies and procedures for addressing hunger strikes—a slightly larger tube is standard use. A lubricant with a mild painkiller in it is used to reduce any discomfort.
Detainees are fed twice daily only if they refuse a standard meal that is always offered first. They will remain in the chair if considered a purge risk just long enough to digest the food. In order to test the system shortly after his arrival in spring 2006, Admiral Harris directed that medical personnel set him up with a tube feeding exactly as they do a hunger-striking detainee. He went through the entire process, including actually being given liquid nourishment, without discomfort.
Cucullu’s findings suggest that US personnel are clinically careful and humane in their application of the force-feeding technique. Cucullu writes that, in the fall of 2005, hunger striking detainees could even expect “foot rubs”:
The hospital was quickly becoming overworked, as were the escort teams required to move striking detainees to and fro for their twice daily feedings, weigh-in, and medical evaluation. “They get to where they knew it was wearing us down,” an Army major in the JDG said. “It had turned into a game with them and they were winning. They got to go to the air-conditioned hospital for a few hours, hang out with the brothers and talk all they wanted, get a feeding, and have their feet rubbed. Not a bad deal.”
What’s with the foot rub? “Hunger striking leads to poor circulation in the extremities. So the nurses and female corpsmen rub their feet.”
Mitchell insists, however, that force-feeding is abusive, if only because the US government employs the technique to suppress legitimate resistance. He takes particular issue with the practice of strapping detainees to chairs, describing this as “a method of … preventing [them] from registering protest at the injustice of their condition.” Noting that at least thirty men were on hunger strike at the time of his writing, he comments:
Most of these prisoners are not facing imminent death. In fact, force-feeding is itself a risky “treatment” that can cause infections, gastrointestinal disorders, and other complications. The feedings begin very soon after prisoners begin a hunger strike, and continue daily—with military guards strapping them to restraint chairs, usually for several hours at a time—until the prisoners agree to end the strike. This hunger striker is not an emaciated Bobby Sands lying near death after many weeks of starvation. He is a strong man bound to a chair and covered in his own vomit.
The fact that most men are not about to die has led Mitchell to claim, elsewhere, that the fact that prisoners have to be strapped down to protect medical personnel indicates that they should not be subjected to force-feeding:
If the prisoners are in danger of imminent death, one must assume that, by definition, they would lack the strength to present a threat to medical or military personnel. And yet if they are in fact strong enough to present a threat to medical or military personnel, then the claim of “imminent death” no longer carries legal or ethical relevance.”
But, as Cucullu explains,
Detainees brought into the hospital were shackled to the beds with two-point restraints. Shackling detainees alleviated concerns about a detainee using on-hand equipment to injure medical staff or attempt an escape. Then the detainee would moan about the pain in a foot or hand and ask that the restraints be loosened. Often sympathetic medics would comply with the request.
On one such occasion, while being treated by a female nurse, a detainee with no provocation drew back and punched her so hard that her nose was broken and splashed across her face. Blood spattered profusely. She withdrew to get medical attention herself. Meanwhile the detainee loudly complained for his clothing and sheet to be changed. “The infidel whore’s blood has defiled me,” he shouted. “Change my clothes!”
Detainees in Guantanamo should not be mistaken for modern-day Gandhis engaging in non-violent protest. The fall 2005 hunger strikes put severe strain on hospital staff. In the wake of these strikes, according to Cucullu, “incidents of detainees striking or clawing nurses and corpsmen rose sharply, due in part to a failure to restrain the patients properly.” Some detainees “were moved into the newly constructed mental health facility for feeding due to overcrowding at the hospital,” and “angry incidents rose to a peak and culminated with two detainee uprisings in the mental health area.” According to a medic, “they tore out the IV bottles, swung the poles like clubs, ripped up the cots, and threw everything they could at us … Finally the guards came in with an ERF [emergency response force] team and quieted them down.”
Mitchell may dismiss such instances of violence as manifestations of detainee frustration at unjust detention. But this may be naïve. Detainees have successfully organized resistance efforts that have been both disruptive and indicative of deliberate planning. While Mitchell writes sympathetically of detainees “covered in [their] own vomit,” Cucullu notes that “some of the hard-core detainees had gamed the system and began to vomit up the liquid—‘purging,’ the medics called it. Others figured that if left alone for a few minutes they could suck on the NG tubes and siphon the liquid back out of their systems.” This is why Joint Detention Group commander Colonel Michael Bumgarner ordered special restraint chairs from the US. Moreover, military and medical personnel have grown accustomed to resistance efforts involving teams of detainees. According to an army major, one such protest
was highly organized … They would designate 10 guys to go on a hunger strike for a week. After it was over most would come back to eat. Some of the guys would say “I can hang in a few days more,” and the leaders would tell them to “go for it.” You could see them rotating teams in and out. Sometimes they’d eat for a few days, then go back. It was all designed to jerk us around.
[Pentagon spokesperson Cynthia] Smith went on to note that some strikers may be protesting because they feel pressured to do so by other prisoners. In such cases, force-feeding was a way to help them resist that pressure. This was a strange argument. Given that the prisoners are separated from one another and are under constant surveillance, such pressure could come only in the form of appeals to conscience.
Apparently, Mitchell is unaware of the subtle means of covert communication employed by detainees to organize resistance efforts and undermine the system of detention and interrogation.
There are multiple detainee camps in Guantanamo, some of which are maximum security, with no communal living facilities, but others (e.g. Camp IV) are designed, according to Cucullu, for compliant detainees, who are allowed “to wear white or beige clothing, live in 10-man communal facilities, and have a great deal of outside recreation time.” According to Cucullu, “almost 90 percent of the population wears white or beige clothing and lives communally.” Construction of new camps has been on-going at Guantanamo, in part to reduce detainee movement between camps. Camp V was constructed incorporating lessons learned from US prisons. Critics of Guantanamo have cited Camp V as an example of how detainees are held in isolation in Guantanamo, but, as Cucullu points out, while prisoners are segregated, they are not isolated:
They see other detainees, and are permitted to converse across the hall and from cell to cell. “They talk to each other all the time,” [Sergeant First Class Allen] Rich noted, “and, of course, we don’t interfere with that.” It was reported that in Camp V, detainees also will yell into the toilet piping to communicate with their fellows.”
Detainees have also devised creative means of covert communication. Many of those in a leadership role will advise younger, less senior detainees to deliberately violate rules in order to be sent to different camps, or to the hospital wing, bearing messages for other detainees. According to SFC Rich,
I call a couple of them “Heavies” … They don’t ever get involved in assaults themselves but they have enough authority to tell other, younger ones what to do. Sometimes they’ll have one of these guys assault us to get moved to discipline block or to fake being sick to get over to the hospital. That’s how they communicate and pass messages back and forth.
At a cost of $37 million, Camp VI was “originally designed as a communal facility in which maximum recreation time, co-mingling, and socialization among detainees was permitted.” It has “eight separate pods surrounding common areas,” and “each pod is two-story, with a high ceilinged, roughly circular interior, and contains 22 individual cells plus a common area.” Moreover, “pod interior space is very open and well lit, with both skylights and protected fluorescent lighting,” and “cells have protected fluorescent lighting and are painted a light, neutral color.” Individual cells are “6 feet, 8 inches in width by 12 feet in depth, for an 81-square-foot capacity.” Both Camps V and VI meet or exceed the American Correctional Association standards of 80 ft2 per cell. Camps V and VI have been equipped with full on-site dental and medical facilities, interrogation rooms and meeting rooms for attorneys and detainees, in an attempt to reduce detainee movement:
Why is this detainee movement reduction so important? In a large percentage of the cases, movement facilitated communications between camps and among detainees. Common areas like the detainee dispensary and the detainee hospital were favorite meeting places to exchange camp-to-camp information. The medical personnel were told not to refuse a detainee the right to go on sick call, so the local camp or block leader might designate one to complain of stomach cramps and diarrhea that day or to wake up with a headache. Once at the hospital, he could converse with fellow detainees, trade news and information, and pass along instructions. Many think that orders to engage in hunger strikes, to act hostile toward guards, or other instructions were commonly passed by this method.
It is, of course, in the interests of military and medical personnel serving in Guantanamo to portray their actions in the best light possible. Perhaps it is impossible to go beyond he said, she said unless we visit the facilities ourselves. Cucullu writes that, “over the course of multiple visits to Guantanamo, backed by extensive research, I have determined that in fact some detainees were subjected to extremely harsh interrogation methods that are no longer allowed.” But “vigorous and prolonged investigations covering more than 24,000 interrogation sessions inside Guantanamo over a three-year period revealed a total of three violations.” In short, abuses were rare. Mitchell’s analysis takes the veracity of statements by detainees and their advocates for granted. In so doing, he ignores evidence that detainees use deception to wage asymmetrical warfare.
Mistakes and abuses did occur at Guantanamo. But the facility was also one of the fundamental success stories of the war on terror. Guantanamo detentions and interrogations facilitated a strategic understanding of the deeply entrenched, worldwide terrorist infrastructure that confronted the US in the aftermath of 9/11. While this may have come at the expense of mistakes and abuses, US policy was not guided by a myopic interest in punishing combatants in order to deter potential terrorists. Nor does the US conduct drone strikes with reckless disregard for international law and unconcern for civilian casualties, as part of a futile game of whack-a-mole. Academic debates about consequentialism can be constructive, and real-world debates about the relative efficacy of various counterterrorism policies are vital, but one should not be led astray by Chomskyite arguments that adapt the facts to pre-packaged narratives.