April 11, 2008

How We Became Torturers

Cruelty, humiliation, and the use of torture on detainees have long been prohibited by international law, including the Geneva Conventions and their Common Article 3. This total ban was reinforced in 1984 with the adoption of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which criminalizes torture and complicity in torture... The definition of torture, as set out in the 1984 Convention, ... is binding on 145 countries, including the United States. Torture includes “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person.”
Finally, FINALLY, with the release of the John Yoo torture memo (see A Gulag By Any Other Name), the mainstream press has begun to explore the idea that the ludicrous "just a few bad apples in the enlisted ranks" explanation for the disgraces of Abu Ghraib, Bagram Air Force Base and Guantanamo Bay might not be plausible. ABC News ran a piece on Wednesday that directly ties the National Security Council Principals Committee, a group of the president's senior advisers made up at that time of Vice President Cheney, former National Security Advisor Condoleezza Rice, former Defense Secretary Donald Rumsfeld, former Secretary of State Colin Powell, former C.I.A. Director George Tenet and former Attorney General John Ashcroft, to interrogation of prisoners in American captivity using methods legally defined as torture.

According to the report, interrogators appear to have known they were skating on the thinnest ice, repeatedly asking for explicit approval from the Principals for the use of torture in an effort to ensure their protection from later prosecution. Tellingly, members of the Committee - or at least Mr. Ashcroft - also seemed aware that they had crossed the line, with the one-time A.G. asking, "Why are we talking about this [approval of torture during interrogation] in the White House? History will not judge this kindly."

I don't agree with John Ashcroft on much, but he unquestionably nailed that one.

While the ABC story is upsetting enough, Philippe Sands' examination in Vanity Fair of the manner in which torture came to be United States policy is downright chilling and profoundly disturbing in its detailed and damning presentation of the machinations involved. Because it is somewhat lengthy - at least in internet terms - I am providing key excerpts below (which are still lengthy, but at least less so). In my opinion, however, this is must-read material, and I urge you in the strongest possible terms to take in every word of the original story. Mr. Sands concludes his article by positing that, for all their apparent invulnerability within the borders of the United States, the authors and perpetrators of American torture policy and the Bush Administration's institutionalized disregard for global standards of human rights, may one day be pursued by international investigators and prosecuted for the war crimes they have committed.

One can only hope.

Excerpted from "The Green Light" by Philippe Sands (Vanity Fair, May 2008)
The abuse, rising to the level of torture, of those captured and detained in the war on terror is a defining feature of the presidency of George W. Bush. Its military beginnings, however, lie not in Abu Ghraib, as is commonly thought, or in the “rendition” of prisoners to other countries for questioning, but in the treatment of the very first prisoners at Guantanamo. Starting in late 2002 a detainee bearing the number 063 was tortured over a period of more than seven weeks. In his story lies the answer to a crucial question: How was the decision made to let the U.S. military start using coercive interrogations at Guantanamo?

The Bush administration has always taken refuge behind a “trickle up” explanation: that is, the decision was generated by military commanders and interrogators on the ground. This explanation is false. The origins lie in actions taken at the very highest levels of the administration - by some of the most senior personal advisers to the president, the vice president, and the secretary of defense. At the heart of the matter stand several political appointees - lawyers - who, it can be argued, broke their ethical codes of conduct and took themselves into a zone of international criminality, where formal investigation is now a very real option. This is the story of how the torture at Guantanamo began, and how it spread.
The authorized version [of the Bush Administration justification for torture] had four basic parts... First, the administration had moved reasonably - with care and deliberation, and always within the limits of the law. In February 2002 the president had determined, in accordance with established legal principles, that none of the detainees at Guantanamo could rely on any of the protections granted by Geneva, even Common Article 3... The second element of the administration’s narrative dealt with the specific source of the new interrogation techniques... The administration pointed to the military commander at Guantanamo, Major General Michael E. Dunlavey... The third element of the administration’s account concerned the legal justification for the new interrogation techniques. This, too, the administration said, had originated in Guantanamo... The fourth and final element of the administration’s official narrative was to make clear that decisions relating to Guantanamo had no bearing on events at Abu Ghraib and elsewhere. Gonzales [former White House Counsel and Attorney General Alberto Gonzales] wanted to “set the record straight” about this. The administration’s actions were inconsistent with torture. The abuses at Abu Ghraib were unauthorized and unconnected to the administration’s policies.
The real story, pieced together from many hours of interviews with most of the people involved in the decisions about interrogation, goes something like this: The Geneva decision was not a case of following the logic of the law but rather was designed to give effect to a prior decision to take the gloves off and allow coercive interrogation; it deliberately created a legal black hole into which the detainees were meant to fall. The new interrogation techniques did not arise spontaneously from the field but came about as a direct result of intense pressure and input from Rumsfeld’s office. The Yoo-Bybee Memo was not simply some theoretical document, an academic exercise in blue-sky hypothesizing, but rather played a crucial role in giving those at the top the confidence to put pressure on those at the bottom. And the practices employed at Guantanamo led to abuses at Abu Ghraib.
[Former Under Secretary of Defense for Policy] Douglas Feith had a long-standing intellectual interest in Geneva, and for many years had opposed legal protections for terrorists under international law... Those who chose not to follow the rules, he argued, shouldn’t be allowed to rely on them, or else the whole Geneva structure would collapse...To uphold Geneva’s protections, [he posited,] you might have to cast them aside.

But that way of thinking didn’t square with the Geneva system itself, which was based on two principles: combatants who behaved according to its standards received P.O.W. status and special protections, and everyone else received the more limited but still significant protections of Common Article 3.
... How had the administration gone from a commitment to Geneva... to the president’s declaration that none of the detainees had any rights under Geneva? It all turns on what you mean by “promoting respect” for Geneva, Feith explained. Geneva didn’t apply at all to al-Qaeda fighters, because they weren’t part of a state and therefore couldn’t claim rights under a treaty that was binding only on states. Geneva did apply to the Taliban, but by Geneva’s own terms Taliban fighters weren’t entitled to P.O.W. status, because they hadn’t worn uniforms or insignia. That would still leave the safety net provided by the rules reflected in Common Article 3 - but detainees could not rely on this either, on the theory that its provisions applied only to “armed conflict not of an international character,” which the administration interpreted to mean civil war. This was new. In reaching this conclusion, the Bush administration simply abandoned all legal and customary precedent that regards Common Article 3 as a minimal bill of rights for everyone.
... The principled legal arguments were a fig leaf. The real reason for the Geneva decision, as Feith now made explicit, was the desire to interrogate these detainees with as few constraints as possible. Feith thought he’d found a clever way to do this, which on the one hand upheld Geneva as a matter of law... and on the other pulled the rug out from under it as a matter of reality. Feith’s argument was so clever that Myers [then-Chairman of the Joint Chiefs of Staff General Richard Myers] continued to believe Geneva’s protections remained in force - he was “well and truly hoodwinked,” one seasoned observer of military affairs later told me.
“This year I was really a player,” Feith said, thinking back on 2002 and relishing the memory. I asked him whether, in the end, he was at all concerned that the Geneva decision might have diminished America’s moral authority. He was not. “The problem with moral authority,” he said, was “people who should know better, like yourself, siding with the assholes, to put it crudely.” Feith, for his part, had told me that he knew nothing about any specific interrogation issues until the Haynes Memo [a document written by William J. (Jim) Haynes II, the general counsel of the U.S. Department of Defense at the time, authorizing specific "enhanced interrogation techniques"] suddenly landed on his desk. But that couldn’t be right - in the memo itself Haynes had written, “I have discussed this with the Deputy, Doug Feith and General Myers.” I read the sentence aloud. Feith looked at me. His only response was to tell me that I had mispronounced his name. “It’s Fythe,” he said. “Not Faith.”
The lawyers in Washington were playing a double game. They wanted maximum pressure applied during interrogations, but didn’t want to be seen as the ones applying it - they wanted distance and deniability. They also wanted legal cover for themselves. A key question is whether Haynes and Rumsfeld had knowledge of the content of these memos before they approved the new interrogation techniques for al-Qahtani. [Mohammed al-Qahtani, allegedly a member of the 9/11 conspiracy and the so-called 20th hijacker.] If they did, then the administration’s official narrative - that the pressure for new techniques, and the legal support for them, originated on the ground at Guantanamo, from the “aggressive major general” and his staff lawyer - becomes difficult to sustain. More crucially, that knowledge is a link in the causal chain that connects the keyboards of Feith and Yoo to the interrogations of Guantanamo.
Not everyone at Guantanamo was enthusiastic. The F.B.I. and the Naval Criminal Investigative Service (N.C.I.S.) refused to be associated with aggressive interrogation. They opposed the techniques. One of the N.C.I.S. psychologists, Mike Gelles, knew about the brainstorming sessions but stayed away. He was dismissive of the administration’s contention that the techniques trickled up on their own from Guantanamo. “That’s not accurate,” he said flatly. “This was not done by a bunch of people down in Gitmo - no way.”

That view is buttressed by a key event that has received virtually no attention. On September 25 [2002], as the process of elaborating new interrogation techniques reached a critical point, a delegation of the administration’s most senior lawyers arrived at Guantanamo. The group included the president’s lawyer, Alberto Gonzales, who had by then received the Yoo-Bybee Memo; Vice President Cheney’s lawyer, David Addington, who had contributed to the writing of that memo; the C.I.A.’s John Rizzo, who had asked for a Justice Department sign-off on individual techniques, including waterboarding, and received the second (and still secret) Yoo-Bybee Memo; and Jim Haynes, Rumsfeld’s counsel. They were all well aware of al-Qahtani. “They wanted to know what we were doing to get to this guy,” Dunlavey told me, “and Addington was interested in how we were managing it.” I asked what they had to say. “They brought ideas with them which had been given from sources in D.C.,” Dunlavey said. “They came down to observe and talk.” Throughout this whole period, Dunlavey went on, Rumsfeld was “directly and regularly involved.”

... Do “whatever needed to be done.” That was a green light from the very top - the lawyers for Bush, Cheney, Rumsfeld, and the C.I.A. The administration’s version of events - that it became involved in the Guantanamo interrogations only in November, after receiving a list of techniques out of the blue from the “aggressive major general” - was demonstrably false... The common theme was that the techniques were fine “so long as the force used could plausibly have been thought necessary in a particular situation to achieve a legitimate government objective, and it was applied in a good faith effort and not maliciously or sadistically for the very purpose of causing harm.” That is to say, the techniques are legal if the motivation is pure. National security justifies anything.
When we spoke, Myers confessed to being troubled that normal procedures had been circumvented. He held the Haynes Memo in his hands, looking carefully at the sheet of paper as if seeing it clearly for the first time. He pointed: “You don’t see my initials on this.” Normally he would have initialed a memo to indicate approval, but there was no confirmation that Myers had seen the memo or formally signed off on it before it went to Rumsfeld. “You just see I’ve ‘discussed’ it,” he said, noting a sentence to that effect in the memo itself. “This was not the way this should have come about.” Thinking back, he recalled the “intrigue” that was going on, intrigue “that I wasn’t aware of, and Jane [Jane Dalton, counsel to General Myers] wasn’t aware of, that was probably occurring between Jim Haynes, White House general counsel, and Justice.”

Further confirmation that the Haynes Memo got special handling comes from a former Pentagon official, who told me that Lieutenant General Bantz Craddock, Rumsfeld’s senior military assistant, noticed that it was missing a buck slip, an essential component that shows a document’s circulation path, and which everyone was supposed to initial. The Haynes Memo had no “legal chop,” or signature, from the general counsel’s office. It went back to Haynes, who later signed off with a note that said simply, “Good to go.”
Mike Gelles, of the N.C.I.S., had shared with me his fear that the al-Qahtani techniques would not simply fade into history - that they would turn out to have been horribly contagious. This “migration” theory was controversial, because it potentially extended the responsibility of those who authorized the Guantanamo techniques to abusive practices elsewhere. John Yoo has described the migration theory as “an exercise in hyperbole and partisan smear.” ... [However] three different official investigations in the space of three years have confirmed the migration theory. The August 2006 report of the Pentagon’s inspector general concluded unequivocally that techniques from Guantanamo had indeed found their way to Iraq. An investigation overseen by former Secretary of Defense James R. Schlesinger determined that “augmented techniques for Guantanamo migrated to Afghanistan and Iraq where they were neither limited nor safeguarded.”
As the consequences of Hamdan [Hamdan v. Rumsfeld, a U.S. Supreme Court decision overturning the military commissions system implemented by the Bush Administration to try prisoners held at Guantanamo Bay] sank in, the instinct for self-preservation asserted itself. The lawyers got busy. Within four months President Bush signed into law the Military Commissions Act. This created a new legal defense against lawsuits for misconduct arising from the “detention and interrogation of aliens” between September 11, 2001, and December 30, 2005. That covered the interrogation of al-Qahtani, and no doubt much else. Signing the bill on October 17, 2006, President Bush explained that it provided “legal protections that ensure our military and intelligence personnel will not have to fear lawsuits filed by terrorists simply for doing their jobs.” ... In a word, the interrogators and their superiors were granted immunity from prosecution. Some of the lawyers who contributed to this legislation were immunizing themselves. The hitch, and it is a big one, is that the immunity is good only within the borders of the United States.
The Altstötter case had been prosecuted by the Allies to establish the principle that lawyers and judges in the Nazi regime bore a particular responsibility for the regime’s crimes. Sixteen lawyers appeared as defendants. The scale of the Nazi atrocities makes any factual comparison with Guantanamo absurd, a point made to me by Douglas Feith, and with which I agree. But I wasn’t interested in drawing a facile comparison between historical episodes. I wanted to know more about the underlying principle.
Mohammed al-Qahtani is among the first six detainees scheduled to go on trial for complicity in the 9/11 attacks; the Bush administration has announced that it will seek the death penalty. Last month, President Bush vetoed a bill that would have outlawed the use by the C.I.A. of the techniques set out in the Haynes Memo and used on al-Qahtani. Whatever he may have done, Mohammed al-Qahtani was entitled to the protections afforded by international law, including Geneva and the torture convention. His interrogation violated those conventions. There can be no doubt that he was treated cruelly and degraded, that the standards of Common Article 3 were violated, and that his treatment amounts to a war crime. If he suffered the degree of severe mental distress prohibited by the torture convention, then his treatment crosses the line into outright torture. These acts resulted from a policy decision made right at the top, not simply from ground-level requests in Guantanamo, and they were supported by legal advice from the president’s own circle.

Those responsible for the interrogation of Detainee 063 face a real risk of investigation if they set foot outside the United States. Article 4 of the torture convention criminalizes “complicity” or “participation” in torture, and the same principle governs violations of Common Article 3.

It would be wrong to consider the prospect of legal jeopardy unlikely. I remember sitting in the House of Lords during the landmark Pinochet case, back in 1999 - in which a prosecutor was seeking the extradition to Spain of the former Chilean head of state for torture and other international crimes - and being told by one of his key advisers that they had never expected the torture convention to lead to the former president of Chile’s loss of legal immunity. In my efforts to get to the heart of this story, and its possible consequences, I visited a judge and a prosecutor in a major European city, and guided them through all the materials pertaining to the Guantanamo case. The judge and prosecutor were particularly struck by the immunity from prosecution provided by the Military Commissions Act. “That is very stupid,” said the prosecutor, explaining that it would make it much easier for investigators outside the United States to argue that possible war crimes would never be addressed by the justice system in the home country - one of the trip wires enabling foreign courts to intervene. For some of those involved in the Guantanamo decisions, prudence may well dictate a more cautious approach to international travel. And for some the future may hold a tap on the shoulder.

“It’s a matter of time,” the judge observed. “These things take time.” As I gathered my papers, he looked up and said, “And then something unexpected happens, when one of these lawyers travels to the wrong place.”

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