Dancing in the Dark
July 14, 1955: The United States ratifies the 1949 Geneva Conventions for the Protection of Victims of War. Of the four conventions, the third is the “Convention Relative to the Treatment of Prisoners of War.”
August 21, 1996: President Clinton signs the War Crimes Act of 1996. “After 40 years, after the ratification of the Geneva Conventions, [we discovered] that it was not self-enacting, and we actually have never passed the necessary legislation to accept jurisdiction within our Federal courts to prosecute war crimes that we were aware of,” says Oklahoma Senator James Inhofe.
Subsection (d)(1)(A) of the War Crimes Act expressly defines and forbids torture: “The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.”
Violation of the War Crimes Act is a felony with a maximum sentence of life imprisonment, or death if the torture victim dies.
September 11, 2001, 12:05 pm: Defense secretary Donald Rumsfeld is told that al Qaeda is likely responsible for the morning’s attacks, based on a phone call the NSA intercepted 15 minutes after the Pentagon was hit.
September 11, 2001, 2:40 pm: Rumsfeld demands “Best info fast. Judge whether good enough hit S.H. [Saddam Hussein] at same time. Not only UBL [Osama bin Laden].… Need to move swiftly.… Go massive. Sweep it all up. Things related and not.”
December 2001: The Pentagon’s Office of the General Counsel requests information on detainee “exploitation” from the Joint Personnel Recovery Agency (JPRA), which runs SERE — the Survival, Evasion, Resistance and Escape program.
SERE is designed to train soldiers to withstand techniques expressly prohibited by the Third Geneva Convention. The techniques are “based, in part, on Chinese Communist techniques used during the Korean war to elicit false confessions.”
December 28, 2001: John Yoo and Patrick Philbin, both deputy assistant attorneys general, issue a memo to William “Jim” Haynes II, the Pentagon’s general counsel, entitled “Re: Possible Habeas Jurisdiction over Aliens Held in Guantanamo Bay, Cuba.”
January 9, 2002: Yoo and Robert Delahunty, special counsel in the Justice department’s Office of Legal Counsel, issue a second requested memo to Haynes, who asks whether “the laws of armed conflict” apply to al Qaeda and the Taliban. “Afghanistan’s status as a failed state is ground alone to find that members of the Taliban militia are not entitled to enemy POW status under the Geneva Conventions,” they write. Lawyers from the military and State department are not involved in drafting the memo.
February 1, 2002: The Pentagon’s Criminal Investigation Task Force is officially activated to investigate detainees. Members are drawn from the Army Criminal Investigation Division, the Naval Criminal Investigative Service, and the Air Force Office of Special Investigations.
February 7, 2002: President Bush signs a memo stating the Third Geneva Convention does not apply to al Qaeda, and that Taliban detainees are not entitled to POW status.
March 2002: Abu Zubaydah is captured in Pakistan. President Bush calls him “one of the top [al Qaeda] operatives plotting and planning death and destruction on the United States.” Dan Coleman, the FBI’s top al Qaeda analyst, tells a senior bureau official, “This guy is insane, certifiable, split personality.” CIA analysts determine he’s responsible for minor logistics, such as travel for wives and children.
Spring 2002: The National Security Council reviews a CIA request for “an interrogation program for high-level al Qaeda terrorists.” Participants in the review include Donald Rumsfeld, John Ashcroft, and Condoleeza Rice.
April 16, 2002: Bruce Jessen, senior SERE psychologist at JPRA, circulates a draft “exploitation” plan to JPRA Commander Colonel Randy Moulton and other senior officials. Jessen will later join James Elmer Mitchell to form Mitchell, Jessen & Associates, a Spokane, Washington, company with CIA contracts to train interrogators.
July 2002: The JPRA sends a memo to the Pentagon Office of the General Counsel that says, in part, “physical and/or psychological duress” are ineffective means of interrogation, because “the reliability and accuracy of this information is in doubt.” The JPRA materials are forwarded to John A. Rizzo, CIA acting general counsel, and to the Justice department.
August 1, 2002: The Justice department’s Office of Legal Counsel issues two legal opinions “after consultation with senior Administration attorneys,” including Alberto Gonzales and David Addington, counsels for President Bush and Vice President Cheney. Both opinions — one addressed to Gonzales, the other to the CIA’s Rizzo — are signed by assistant attorney general Jay Bybee. John Yoo drafted the memos after discussions with Gonzales and Addington.
The memo to Rizzo offers legal justifcation for the planned interrogation of Abu Zubaydah, “one of the highest ranking members” of al Qaeda. The memo approves details of SERE techniques, up to and including waterboarding.
August 2002: Abu Zubaydah is waterboarded 83 times.
September 16, 2002: A group of “interrogators and behavior scientists” from Guantanamo travel to Fort Bragg, North Carolina, to attend SERE training.
September 25, 2002: David Addington and John Rizzo, among other “senior Administration lawyers,” visit Gitmo. A week later, “two GTMO behavioral scientists” who observed SERE training draft a memo proposing new interrogation techniques.
October 2, 2002: Jonathan Fredman, chief counsel to the CIA’s counter-terrorist center, discusses with Gitmo staff “aggressive interrogation techniques” including sleep deprivation, death threats, and waterboarding. Fredman tells the meeting, “If the detainee dies, you’re doing it wrong.”
October 11, 2002: Gitmo commander Major General Michael Dunlavey requests authority to use “aggressive interrogation techniques,” including “those used in U.S. military interrogation resistance training.” Gitmo’s staff judge advocate, Lieutenant Colonel Diane Beaver, justifies the legality of the techniques, pending a broader legal review “at more senior levels.”
October 16, 2002: Congress passes the Authorization for Use of Military Force Against Iraq, stating that Iraq is “continuing to possess and develop a significant chemical and biological weapons capability, actively seeking a nuclear weapons capability, and supporting and harboring terrorist organizations,” including al Qaeda.
October 25, 2002: General James Hill, commander of the U.S. Southern Command, forwards the Gitmo authorization request to General Richard Myers, chairman of the Joint Chiefs of Staff.
November 2002: In the flurry of memos that follow, the legality of the Gitmo request is questioned by lawyers for the Army, the Navy, the Air Force, and the Marine Corps.
Captain Jane Dalton, legal counsel to the chairman of the Joint Chiefs, directs her staff to “initiate a thorough legal and policy review” of the Gitmo request. The review is halted by Richard Myers. “Captain Dalton testified that this occasion marked the only time she had ever been told to stop analyzing a request that came to her for review.”
November 23, 2002: The interrogation of Mohammed al-Khatani begins. It will continue through mid-January 2003, despite “strong opposition” from members of the FBI and the Criminal Investigation Task Force.
November 27, 2002: Haynes, the Pentagon’s general counsel, sends a one-page memo to Donald Rumsfeld recommending that all but three of the eighteen techniques in the Gitmo request be approved. The memo references discussions with Paul Wolfowitz, deputy secretary of defense, and Doug Feith, undersecretary of defense for policy. Haynes cites the provisional opinion from the Gitmo lawyer as legal support, with no mention of the questions raised by senior lawyers from all the services.
December 2, 2002: Rumsfeld approves the Haynes recommendation, adding: “I stand for 8-10 hours a day. Why is standing limited to 4 hours?”
December 30, 2002: Two instructors from the Navy’s SERE school arrive at Gitmo to teach 24 interrogators how to administer “stress positions.” The instructors provide a chart of “Biderman’s Principles,” based on “coercive methods used by the Chinese Communist dictatorship to elicit false confessions from U.S. POWs during the Korean War.”
January 3, 2003: Gitmo commander Major General Geoffrey Miller tells the SERE instructors that he does not want his interrogators using their techniques. This meeting follows the actual training by three days. Some of the interrogators don’t get the message.
January 15, 2003: After repeated unanswered complaints to Haynes, Navy General Counsel Alberto Mora delivers a draft legal memo stating his concerns that the interrogation techniques “could rise to the level of torture.” Mora tells Haynes in a phone call that he will sign the memo later that day unless the techniques are suspended.
By the end of the day, Rumsfeld rescinds authority for the techniques, and the Gitmo interrogation of Mohammed al-Khatani ceases. In addition to the use of military dogs, “he had also been deprived of adequate sleep for weeks on end, stripped naked, subjected to loud music, and made to wear a leash and perform dog tricks.” (On May 13, 2008, the Pentagon will announce that charges against Khatani have been “dismissed without prejudice.”)
His authority now rescinded, Rumsfeld the same day creates a “Working Group” to review interrogation techniques.
March 14, 2003: John Yoo issues a legal opinion justifying the techniques, repeating much of what he said in the August 1, 2002, memo signed by Bybee. The opinion was requested by Haynes at the start of the Working Group process.
March 19, 2003: President Bush announces the invasion of Iraq.
April 2003: The Working Group issues its report. Attempts by “senior military and civilian lawyers” to have their legal concerns reflected in the report are ignored in favor of the Yoo memo. Although the report does not mention SERE by name, many of the techniques are familiar.
April 16, 2003: Rumsfeld authorizes 24 specific interrogation techniques for use at Gitmo. The list does not include everything recommended by the Working Group report, but Rumsfeld invites further permission: “If, in your view, you require additional interrogation techniques for a particular detainee, you should provide me, via the Chairman of the Joint Chiefs of Staff, a written request describing the proposed technique, recommended safeguards, and the rationale for applying it with an identified detainee.”
May 1, 2003: President Bush lands on the USS Abraham Lincoln in the ocean west of San Diego and declares “Mission Accomplished.”
Inquiry Into the Treatment Of Detainees In U.S. Custody, November 20, 2008 (Released, April 22, 2009) [Senate Armed Services Committee, PDF]
In 2002, Military Agency Warned Against ‘Torture’ [WaPo, April 25]
Rorschach and Awe [Vanity Fair, July 17, 2007]
The Shadow War, In a Surprising New Light [WaPo, June 20, 2006]
Plans For Iraq Attack Began On 9/11 [CBS, Sept. 4, 2002]
Senate debate of the War Crimes Act of 1996 [Library of Congress]
U.S. Code Sec. 2441 (War crimes) [Cornell]