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Opinion >  Column

Shawn Vestal: At the Supreme Court, the justices use the right word for torture

FILE – This undated file photo provided by U.S. Central Command, shows Abu Zubaydah, date and location unknown. The Supreme Court is hearing arguments about the government’s ability to keep what it says are state secrets from a man tortured by the CIA following 9/11 and now held at the Guantanamo Bay detention center. At the center of the case being heard Wednesday is whether Abu Zubaydah can get information related to his detention.  (HOGP)
FILE – This undated file photo provided by U.S. Central Command, shows Abu Zubaydah, date and location unknown. The Supreme Court is hearing arguments about the government’s ability to keep what it says are state secrets from a man tortured by the CIA following 9/11 and now held at the Guantanamo Bay detention center. At the center of the case being heard Wednesday is whether Abu Zubaydah can get information related to his detention. (HOGP)

When Supreme Court Justice Amy Coney Barrett referred last week to the actions devised and implemented by Bruce Jessen and James Mitchell on one of the most well-known of the long-term detainees in the War on Terror, she used a clear, simple, accurate word.

Torture.

Justice Sonia Sotomayor did the same. As did Justice Elena Kagan and Justice Neil Gorsuch.

Torture.

None of them, not a one, used the words “enhanced interrogation” to describe what was done to Abu Zubaydah, who was infamously, and fruitlessly, waterboarded 83 times.

In the long, sordid evolution of the American post-9/11 torture program – whose contractors were headquartered in downtown Spokane and paid $81 million by the CIA – this is more than a simple semantic matter.

The torture program was built on an effort not just to adopt tactics that we always viewed – apart from the few years the Bush administration went rogue – as illegal under national and international law, but to also create a linguistic and legalistic foundation to pretend that we were not doing what we so clearly were doing: Torturing people.

“When you call a moral obscenity what it is, rather than a minor indignity, you summon a mental image of its true nature, and summon a response that is proportionate,” said Joe Margulies, one of Zubaydah’s attorneys and a Cornell Law School professor, in an interview this week. “That’s why we care about the words. That’s why the words matter.”

As the years have borne out, Mitchell and Jessen were sometimes torturing people who didn’t have any connection to 9/11, as in the case of Zubaydah, or without producing any real intelligence, as was the case with Khalid Sheikh Mohammed. The CIA destroyed tapes of the interrogations, and the government has acted to this day with a zeal to keep the information from the public.

An exhaustive Senate investigation, a redacted version of which was released in 2014, provided a damning account of the program and its lack of effectiveness, as have other journalists and investigators.

Zubaydah was alleged by the government to be a key al-Qaida member involved in the 9/11 attacks – suspicions they later concluded were incorrect. Zubaydah remains captive at Guantanamo Bay. He has not been charged with a crime, two judges have let a petition for a court hearing go unanswered for 14 years, and the Afghanistan war is now over – and still he’s detained.

He was the first detainee tortured under the new program. His waterboarding by Mitchell in a CIA prison in Thailand is perhaps the most well-known incident of the torture program, but it’s important to note that this was far from the only torture technique used. He was deprived of sleep for extended periods, forced into small, coffin-like boxes that restricted his movements overnight, hung by his arms from the cell bars, slammed into walls forcefully, and more.

He was later moved to other sites, including one in Poland. Marguiles and Zubaydah’s team were before the Supreme Court earlier this month on a matter connected to a legal case in Poland. The Polish government is conducting a trial to find whether government officials illegally allowed or participated in the operation of a secret CIA prison, known as a black site.

As a part of this case, it is seeking testimony from Mitchell and Jessen about their activities at the Polish site. The men had developed the Bush administration’s torture program based on their experiences as instructors at Fairchild Air Force Base’s survival school; they took exercises meant to teach people serving in the U.S. military how to resist torture, and applied them as interrogation techniques on behalf of the CIA.

Neither had any experience with interrogation, and were held in seeming contempt by FBI interrogators. Both men have since testified that they were under extreme pressure from their CIA bosses to continue torturing prisoners, even when they told them that it wasn’t working.

As the program has become the focus of various inquiries and legal actions, the government has tried to keep the information under wraps as a state secret, and to prevent or limit what Mitchell and Jessen can say.

That’s what’s happening with the Polish case, even though a lot of what happened at the Polish black site – like other black sites – is publicly known. Still, a lower court prevented the men from being deposed, and Zubaydah’s attorneys are asking the Supreme Court to send the decision back and force the court to determine what is classified and what is not.

They are said to be willing to offer their testimony. Now we’ll wait to see what the court says. The justices raised key questions you might see as hints – about both the flimsy nature of the “secrecy” around the Poland site as well as the 14 years of imprisonment for Zubaydah without an opportunity to have a hearing before a judge – but who knows.

Marguiles is right, though, that it’s a positive sign that the justices called torture by its proper name. The program remains a moral stain, undertaken in fear and desperation after the 9/11 attacks, and justified by an effort to obscure the truth through language and law.

Calling it enhanced interrogation – as if it were just a new, better form of interrogation – was one of the most insidious elements of it all, used by the people who did it, the people who ordered it, and the people in journalism and the political class who eventually talked about it. People throw around the word Orwellian a lot, but there is nothing in our politics that deserves that label more than “enhanced interrogation.”

It was all a vital part of an effort to get a government, and a people, to accept the unacceptable. It distanced us from the reality of what happened – a reality that was obvious on its face.

“It wasn’t just distancing,” Marguiles said. “It’s anesthetizing. It dulls us. We have to not be dulled.”

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