Dancing in the Dark

Connect the dots.

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.”

Sources

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]

Abuse of Power: The Bush Administration’s Secret Legal Memos [ACLU]

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]

September 11, 2001: Rumsfeld Is Told Al-Qaeda Was Behind 9/11 Attacks But Wants to Blame Iraq [History Commons]

Legal Arguments for Avoiding the Jurisdiction of the Geneva Conventions [SourceWatch]

Authorization for Use of Military Force Against Iraq [GPO]

19 comments:

7:48 am • Monday • April 27, 2009

Will there be a sitcom from this? You know the updated version of Hogan’s Heroes?

Hogan: Mohamed the Shepard
Col Klink: General Miller
Gestapo guy: Rumsfeld
Sgt Schultz: Ivan Fredrick

Maybe not a sitcom. A tra-medy.

8:24 am • Monday • April 27, 2009

This is more than we deserve. You’ve outdone yourself. Brava.

Now I have to go to NYC to audition for a soap. It makes me feel so useful.

9:12 am • Monday • April 27, 2009

Excellent. Will tomorrow’s installment cover 2003-08?

In addition to going after the people authorizing torture, and the attorneys writing the memos justifying torture, what about the psychiatrists who took the Hippocratic Oath to do no harm?

9:58 am • Monday • April 27, 2009

BTW: I just love the way the Right is trying to insulate itself from having to answer for these crimes.

Premise: You can’t prosecute a lawyer for simply doing his job and giving an opinion.
Premise: You can’t prosecute torturers who thought what they were doing was legal based on the opinion of the lawyers.
——-
Ergo: You can’t prosecute anyone.

I call that the Nuremberg Syllogism.

10:37 am • Monday • April 27, 2009

And don’t forget this:

Convention Against Torture — signed by Reagan in 1988, ratified in 1994 by Senate:

http://www.hrweb.org/legal/cat.html

Each State Party shall ensure that all acts of torture are offences under its criminal law (Article 4) . . . . The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.
***No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. . . . An order from a superior officer or a public authority may not be invoked as a justification of torture.***

10:41 am • Monday • April 27, 2009

@Serolf Divad:

Yeah, isn’t it just a knee-slapper how lawyers working in some relatively obscure gummit legal division, like the OLC, have the power to repeal six decades of federal and international law?

File that under “Things I Did Not Know.”

11:21 am • Monday • April 27, 2009

SanFranLefty: …what about the psychiatrists who took the Hippocratic Oath to do no harm?

You are coming dangerously close to agreeing with Tom Cruise. DANGER DANGER DANGER!

(OT: Had a bad go during a session once. The woman asked me how I was feeling, and I said that I felt depressed. And she asked: “when you say ‘depressed,’ what exactly do you mean?” The “what exactly do you mean” question was basically repeated as I went through the thesaurus for about an hour. I felt like crying at the end of it, which is how I felt at the beginning of it. It took me another seven years to give the industry another go — with better results, it should be said.)

11:29 am • Monday • April 27, 2009

Excellent, nojo. What a way to spend your weekend.
@SanFranLefty: We only have room for 12-18 months at a time.

11:46 am • Monday • April 27, 2009

Thank you, Nojo. [Has Inhofe been interviewed recently about the War Crimes Act of 1996 and his role in getting it passed?]

12:00 pm • Monday • April 27, 2009

Breaking-
5 members of Congress incl. John Lewis and Keith Ellison arrested at Darfur protest.

12:06 pm • Monday • April 27, 2009

@Jamie Sommers: “Don’t tase me, bro!”

12:21 pm • Monday • April 27, 2009

This was brilliant, Nojo. Keep it up.

12:34 pm • Monday • April 27, 2009

how did david shuster get a gig on a nat’l teevee? his nasally voice and loud breathing makes Fran Dresher sound lovely.

1:11 pm • Monday • April 27, 2009

Jamie Sommers: Per Jamie Sommers (my God — I’m getting my news from here now), apparently Mexico City had one of those earthquakes you keep hearing about from time to time on the teevee.

Jamie supposes something was done in Mexico to offend the gods. On a related note, up in Virginia Beach, Pat Robertson was just heard shouting, “NO, YOU IDIOT! IOWA! SMITE IOWA!”

1:40 pm • Monday • April 27, 2009

FSM has one heluva sense of humor.

2:05 pm • Monday • April 27, 2009

@SanFranLefty: There’s a “rest of the story” feel to what follows after Mission Accomplished, so that seemed a natural cutoff.

But I may fill in this one some more. I forgot to include the odd coincidence of Powell giving his UN speech the afternoon a Senate committee was discussing Bybee’s appeals-court nomination, for example. And I thought about including the torture law Reagan signed, but I liked the forty-year jump from the Geneva Conventions to the War Crimes Act.

(And yes, there’s definitely an interesting follow-up comparing Inhofe’s comments between 1996 and now. For one thing, he mentions the Oklahoma City bombing in that same speech.)

But the main thing was that I personally needed to make sense of all the facts that dribbled out last week, your classic newspaper timeline sidebar. And I needed a resource to judge all the lies coming out this week.

Case in point: There’s a quote out there from a NYT reporter saying he can’t call it “torture” because that’s in dispute. Well, no it isn’t. One of the patterns we see is Rummy & Minions deliberating ignoring the legal consensus, cherry-picking the Gitmo lawyer’s provisional opinion and shutting down the review by the Pentagon’s own legal office. Torturing was railroaded, just as — and at the same time — the war was railroaded.

Literally: a criminal conspiracy.

Another thread I don’t follow here, but is definitely worth following up, is the role of the psychiatrists — licensed medical professionals. The 2007 Vanity Fair story looks at SERE shrink Bruce Jessen, and it’s worth a fresh visit in light of what we know now.

Still another thread: Where are they now? Not all the names are familiar — like Yoo, Delahunty is back in academia.

So I may build on this, but probably not extend the timeline. The Senate report does carry it through to Bagram and Abu Ghraib, and there’s yet another story about the fate of the “bad apples” that Olbermann’s been touching on, but my interest is how it all started.

2:10 pm • Monday • April 27, 2009

@nojo: but my interest is how it all started. The bio of Cheney, Angler suggests that it all started long before inauguration day. Well, the criminal conspiracy stuff anyway.

4:38 pm • Monday • April 27, 2009

@nojo:
Where are they now?

Pretty much where you’d expect: signing seven figure book deals; ensconsced in the academic institutions they claim to despise and teaching a whole new generation that crime pays; appearing as Serious Experts and regular contributors on teevee and in our Pravda-esque noospapers, and so forth.

4:57 pm • Monday • April 27, 2009

@Nabisco: My understanding is that the Cheney story goes back to — drumroll, please — Watergate. As a member of the Ford administration, he deeply resented the limits placed on presidential power.

@Original Andrew: To state something obvious: The media, not satisfied with failing us in 2002-2003, are intent on failing us again. You don’t have to do the Full Olbermann to see something wrong in all this.

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