​On Flags, Fireworks, Hot Dogs, and Torture

Last week, as millions of Americans prepared to celebrate freedom, independence, and other lofty values on July 4, two men were quietly released from a prison in Afghanistan after spending more than a decade without charge or due process in US custody.

Oh, and they were brutally tortured.

Since 2005, with my students and colleagues, I've represented 15 prisoners of various nationalities—Algerian, Libyan, Saudi, Syrian, Yemeni—who have been caught up in the global network of shady and lawless prisons set up by the United States after the 9/11 attacks.

At America's behest, some have been held and tortured at proxy sites run by foreign governments, and they have been incarcerated at US military prisons such as Bagram, Kandahar, and Guantánamo.

Some of them were released long ago (to Saudi Arabia and Algeria, for example), while others were recently released (to Yemen and Uruguay, among other places). Many remain at Guantánamo, whether cleared for release or marked for continued indefinite imprisonment by the US government.

Redha al-Najar and Lotfi al-Ghrissi, the men released last week, were disappeared by the CIA and brutalized for years at its infamous "black sites" before being transferred to US military custody at Bagram Air Base, near Kabul, Afghanistan, where they were held for several more years.

They weren't the only ones, of course. Amin al-Bakri, a Yemeni national that my students and I represented since 2008 was likewise finally released last August, having been abducted by the CIA in 2002.

All three men endured torture at CIA black sites like the Salt Pit and others. Najar and Ghrissi were also subjected to "Enhanced Interrogation Techniques," a subset of torture practices that includes waterboarding, which the CIA reserved for select prisoners.

Of course, for many years, the US government refused to concede even the fact of their CIA detention in court. But when the findings, conclusions, and executive summary of the Senate's damning study of the CIA Rendition, Detention, Interrogation program was finally declassified and made public late last year, there were their names, plain as black ink on white paper, in the report's "Appendix 2: CIA Detainees from 2002-2008."

Najar, CIA detainee number 6 on that list, was imprisoned by the CIA for at least 690 days. Ghrissi, number 20, was imprisoned by the CIA for at least 380 days. Bakri, number 39, was imprisoned by the CIA for at least 490 days.

Why does this matter? Our accounts of their ordeals are often met with the response that President Obama outlawed torture and banned CIA black sites on his first day in office. In other words, their stories are essentially moot now. Our political system has worked, and has corrected the aberration.

Nothing to see here. Carry on, please.

But if one pays close attention, what President Obama did on his first day in office does not completely prohibit torture or CIA detention, but rather allows for their continued, if limited, use.

Here's why. One of President Obama's first acts in office was, indeed, ordering that CIA "detention facilities" be shuttered and forbidding the agency from operating prisons again. But an often-overlooked provision of that Executive Order ( number 13491), however, exempts "short-term, transitory" facilities from the ban.

Further, in a statement regarding CIA detention back in 2012, US Senator Dianne Feinstein, then Chair of the Senate Intelligence Committee, lamented the "long-term, clandestine 'black sites'" as "terrible mistakes."

The effect of all of these verbal gymnastics is to preserve the CIA's ability to hold prisoners directly, albeit short-term. Its authority carved out, the agency is free to define, in its internal regulations, what constitutes "short-term detention." It could, for instance, stipulate that indefinitely renewable 30- or 60-day terms of imprisonment are only "short-term."

And media reports offer good reason to believe that US special forces maintained parallel authority in Afghanistan and Iraq (and possibly in Yemen up until the recent upheaval when they stopped operating on the ground).

And while President Obama's Executive Order limited interrogation techniques to those listed in the Army Field Manual, that document was modified in 2006 to permit stress positions, isolation, and sleep deprivation—methods amounting to torture, according to human rights groups and other experts. Those techniques are now described in—and allowed by—the Army Field Manual's rather ominous sounding Appendix M (and, incidentally, they are depicted and glorified in popular movies like Zero Dark Thirty).

The idea that President Obama fully stripped the CIA (or the US military generally) of any authority to torture prisoners, then, is the product of either real or feigned ignorance.

Equally intact, so far as we know, is the US government's reliance on proxy detention, where foreign regimes do the dirty work of imprisoning, interrogating, and often abusing prisoners without process, at the behest (and sometimes with the participation) of US agents.

As millions celebrated our country's independence and its foundational mythology that rests on the conceptual pillars of liberty, freedom, and democracy this past weekend, it would have been fitting to pause and reflect on the enduring ways in which that mythology is at odds with reality and historical practice.

For Najar, Ghrissi, and Bakri the absence of alignment between American principle and American practice is not just some abstract contemplation. They have experienced that dissonance in the most intensely concrete ways, through the pain deliberately inflicted on their bodies and minds by their American captors and torturers. That pain has rippled out beyond their beings, to their families, communities, and societies, its effects felt well beyond the point of initial contact.

This is not some trivial academic or historical detail. For those men and their loved ones, it is an injustice that ended only recently with their release. And contrary to popular perception and political rhetoric, what happened to those men can happen again to others.

Indeed, with the authority that has been so carefully carved out for the CIA and other components of the national security state, it could already be happening in the shadows.

Ramzi Kassem is a professor at the City University of New York School of Law. He directs the CLEAR project (Creating Law Enforcement Accountability & Responsibility) as well as the Immigrant & Non-Citizen Rights Clinic.