All the Vice President’s Men
The greatest war crime of all is the one that cannot be prosecuted: the war itself.
Fifteen minutes after a hijacked jet smashed into the Pentagon, the NSA intercepted a message tying the morning’s attacks to al Qaeda. Secretary of Defense Donald Rumsfeld was told of the intercept just after noon. Yet by 2:40 p.m. he was demanding “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.”
We’ve long known what followed: An 18-month disinformation campaign to justify an illegal war in Iraq. We’ve known about cherry-picking intelligence. We’ve known about the blatant disregard of informed expert advice. We’ve known about the Orwellian abuse of language to hide the truth.
It should come as no surprise that the torture policy, crafted by the same men at the same time and for the same purpose, was no different.
Except in one respect: Torture clearly and unambiguously violates U.S. law. It is one of the highest of federal crimes, carrying the death penalty.
Nor is it a quaint holdover from World War II. While the Geneva Conventions were created in 1949, and ratified by the U.S. in 1955, the enabling legislation — the laws implementing the principles — was signed by President Clinton in 1996, just five years before our story begins. The more recent U.N. Convention Against Torture was signed by President Reagan in 1988, and ratified in 1994.
This is not just living memory. This falls squarely within the professional careers of the people involved.
1. Laying the Groundwork
In December 2001, the Pentagon’s Office of the General Counsel, run by William “Jim” Haynes II, issued three requests, all regarding planned operations at Guantanamo Bay. Two of those requests went to John Yoo, deputy assistant attorney general: whether Gitmo detainees would have the right to challenge their detention through habeas corpus, and whether they would be entitled to POW status under the Geneva Conventions.
The third request was delivered to the military’s Joint Personnel Recovery Agency, which runs SERE — the Survival, Evasion, Resistance and Escape program. The request sought information on detainee “exploitation”.
Everything that follows is contained in those requests, and we can presume that much discussion preceded them. The requests to Yoo asked for legal justification to effectively “disappear” detainees, remove them from the reach of the law. And the request to JPRA revealed why.
The SERE program, as we now know very well, is designed to train soldiers to withstand torture techniques expressly prohibited by the Third Geneva Convention. The program presumes that soldiers may be captured by groups that ignore international standards covering treatment of POWs. The training is based, in part, on “Chinese Communist techniques used during the Korean war.” More to the point, those techniques were designed “to elicit false confessions.”
In short: by December 2001, the Pentagon’s civilian leadership was looking for an excuse and the means to torture Gitmo prisoners. Whether they intended to gather false confessions, or thought that torture was effective despite evidence to the contrary, we cannot yet say, based on the facts on the record. But given what we know about how the Bush Administration railroaded the Iraq war itself, we have no reason to trust their good faith.
In any event, Yoo issued the requested legal justifications on December 28 and January 9. On February 7, 2002, President Bush signed off on denying Geneva Convention protection to al Qaeda, and denying POW status to Taliban prisoners.
2. The Bybee Memos
Despite stripping Gitmo prisoners of all legal rights — including the right to challenge their imprisonment — they weren’t yet completely disappeared. Torture wasn’t yet permitted, because the War Crimes Act of 1996 doesn’t apply to prisoners, but to their captors. And the legal definition of torture is explicit:
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 … 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.
This is contemporary language, not the “outrages upon personal dignity” of the Third Geneva Convention that President Bush pretended to be befuddled by. More to the point, it is United States law. The specificity of the law explains why Bush Administration lawyers took such pains to write around it.
But Jay Bybee would not sign the torture memos until August 2002. First, the details of the methods requested needed to be researched.
Haynes, the Pentagon’s general counsel, initially sought information about the SERE program in December 2001. By spring, the National Security Council — including Rumsfeld, John Ashcroft, and Condoleeza Rice — was reviewing a CIA request for “an interrogation program for high-level al Qaeda terrorists.”
The request was not theoretical. In March, Abu Zubaydah had been captured in Pakistan. President Bush called him “one of the top [al Qaeda] operatives plotting and planning death and destruction on the United States.” CIA analysts considered him a low-level logistical operative. And the FBI’s top al Qaeda analyst considered him literally insane.
This much is certain: Abu Zubaydah would become the first prisoner tortured with the blessing of the President of the United States.
In April, Bruce Jessen, the senior SERE psychologist, was circulating a draft “exploitation” for review by senior officials. And that’s when we first see the alarms going off.
Jessen was an advocate for torture, and later went into private practice training CIA interrogators. But his views were not shared by his superiors. The JPRA sent a memo to Haynes in July arguing that “physical and/or psychological duress” are ineffective means of interrogation, because “the reliability and accuracy of this information is in doubt.”
The JPRA’s warning was disregarded. Instead, Yoo was chatting up Alberto Gonzales and David Addington — counsels for President Bush and Vice President Cheney.
We don’t yet know the content of those conversations, but we know one of the memos that resulted from them: The August 1, 2002, memo, written by Yoo, signed by Bybee as assistant attorney general in the Office of Legal Counsel, and addressed to John Rizzo, the CIA’s acting general counsel.
The 18-page memo details and approves SERE techniques to be used on Abu Zubaydah. That month, Zubaydah would be waterboarded 83 times.
3. The Rumsfeld Memo
The Bybee memo approved the CIA torture of Abu Zubaydah. The next step was to broaden that approval to members of the U.S. armed services — soldiers. And while Abu Ghraib is beyond the scope of the story we’re telling here, it’s safe to say that the “bad apples” fell from a tree planted in the office of the United States Secretary of Defense.
In September 2002, soon after the CIA’s waterboarding marathon, a group of “interrogators and behavior scientists” from Gitmo traveled to Fort Bragg, North Carolina, to attend SERE training. Later that month, Addington (Cheney’s legal counsel) and Rizzo (the CIA’s legal counsel), among other senior Administration lawyers, visited Gitmo. A week after that visit, two Gitmo “behavioral scientists” back from Fort Bragg drafted a memo proposing new “aggressive interrogation techniques,” including “those used in U.S. military interrogation resistance training.”
The formal request would be issued October 11 by Gitmo commander Major General Michael Dunlavey. Going up the chain of command, the request was forwarded to General Richard Myers, chairman of the Joint Chiefs of Staff, on October 25.
And that’s when all hell broke loose.
Up until November 2002, the legal discussion surrounding torture appears to have been limited primarily to Bush appointees — much like the parallel discussion about intelligence was directed by Paul Wolfowitz from the Defense department, to the exclusion of conventional channels.
But the military could not be as easily constrained. While the Gitmo torture request was accompanied by legal justification from Lieutenant Colonel Diane Beaver, Gitmo’s staff judge advocate, she considered her opinion provisional, pending a broader legal review at more senior levels. That broader review was quick and strong: lawyers from all four branches of the military questioned the legality in a flurry of memos.
The military’s definitive judgment would normally come from Captain Jane Dalton, legal counsel to the chairman of the Joint Chiefs, and she duly directed her staff to “initiate a thorough legal and policy review” of the Gitmo request.
Which Richard Myers promptly blocked.
This was not merely unusual, not even extraordinary — it was unique: “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.”
If you’re looking for a smoking gun — proof that torture was not just a difference of legal opinion, was in fact a plot to circumvent legal opinion — there it is. Richard Myers is a disgrace to his uniform.
Besides, the Gitmo lawyer’s provisional memo provided all the legal cover the criminal conspirators (for that is now what we’re addressing) felt they needed. Haynes, the Pentagon’s general counsel, sent a one-page memo to Donald Rumsfeld on November 27, 2002, recommending that all but three of the eighteen torture techniques in the Gitmo request be approved. Haynes cited the Gitmo lawyer in support, with no mention of the strong objections from senior military lawyers, but referencing discussions with Wolfowitz and Doug Feith.
Rumsfeld approved the Haynes memo on December 2, 2002. “I stand for 8-10 hours a day,” he added. “Why is standing limited to 4 hours?”
4. The Rumsfeld Memo Rejected
The Rumsfeld memo should have ended debate — or what passed for it — but involving the military in torture is not a trivial thing.
Ironically, Gitmo itself revolted. On December 30, 2002, two instructors from the Navy’s SERE school arrived to teach 24 interrogators how to administer “stress positions.” They provided 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” — fully consistent with the purpose of SERE to help soldiers withstand torture, not conduct it.
Gitmo commander Major General Geoffrey Miller knew the difference, and three days after the “training” he told the SERE instructors that he didn’t want his interrogators using their methods.
Meanwhile, back at the Pentagon, a situation was unfolding straight out of The West Wing. Alberto Mora, the Navy’s general counsel, wasn’t taking Rumsfeld’s Yes for an answer. Mora repeatedly complained about it to Haynes, but received no response. Finally, on January 15, 2003, Mora drafted a legal memo stating his concerns that the Gitmo interrogation techniques “could rise to the level of torture.”
That got Haynes’s attention. In a phone call that day, Mora told Haynes he would sign the memo — making it official and putting it on the record — unless the techniques were suspended.
Rumsfeld rescinded his torture memo by the end of the day.
Why? If torture was declared legal by the Secretary of Defense, with justification from the Pentagon’s general counsel, what difference would a contrary opinion make? We know the answer, of course: torture was not legal, and pretending otherwise would not change the law. Evidence of a contrary opinion from a senior military lawyer would show that the issue was far from settled.
We’re talking about the Death Penalty, after all.
5. The Working Group and the Triumph of Evil
Rumsfeld was nothing if not stubborn. The day he rescinded his November torture memo, he created a “Working Group” to review — i.e., justify by other means — torture techniques.
It was a setup, of course. Haynes immediately called on John Yoo to dust off the Bybee torture memo and provide a fresh legal opinion repeating many of the same points. Yoo complied with a revised version dated March 14 — five days before the President Bush announced the Iraq invasion.
The Yoo memo provided better legal cover than the Gitmo lawyer’s provisional effort. The Working Group issued its report in April, relying on Yoo for justification, and ignoring attempts by “senior military and civilian lawyers” to have their objections noted. The report no longer mentioned SERE by name, but many of the torture techniques it recommended were straight out of the playbook.
Among the voices in opposition was again Alberto Mora, the Navy’s general counsel, who had stopped the original Rumsfeld memo in its tracks. Mora told Haynes the Working Group report was flawed and should be put in a drawer, “never [to] see the light of day again.” Mora thought it ended there — he never saw the final report, assumed it was abandoned, and only learned otherwise when the Abu Ghraib scandal broke.
But that wouldn’t emerge for two years. Instead, on April 16, 2003, satisfied that the legal bases were now covered, Rumsfeld again approved 24 specific “interrogation” techniques for use at Gitmo. The blanket approval did not cover everything in the Working Group report, but Rumsfeld invited interrogators to request permission for “additional interrogation techniques for a particular detainee” as needed.
Two weeks later, President Bush landed on the USS Abraham Lincoln in the ocean west of San Diego and declared “Mission Accomplished.”
6. Malice Aforethought
We’ve lived through Watergate, and Iran-Contra, yet neither comes close to the mendacity — to the attack on our values as a nation — of the events covered here and beyond, and by the most senior members of the Bush Administration. These are not policy differences. This is a highly orchestrated criminal conspiracy to subvert the laws of the United States of America.
And not just any laws. The Geneva Conventions are among the most sacred texts of our secular world, following the most brutal war of the last century. Their high-mindedness should not obscure their enduring practical value: They protect us. They protect our soldiers. They protect our moral standing in the world, which we otherwise work so hard to undermine. And our moral standing is what allows others, despite all evidence to the contrary, to cut us some slack.
Looking forward, nothing would serve our interests more than demonstrating we are indeed a nation of laws, and not men. Ignoring those laws will fool nobody but ourselves.
Ball’s in your court, Barry.
Dancing in the Dark: A Torture Timeline [Stinque]