Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka
Posted: Fri Oct 11, 2013 7:02 pm
Introduction
Anthony Lewis
The Torture Papers: The Road to Abu Ghraib includes the full texts of the legal memoranda that sought to argue away the rules against torture. They are an extraordinary paper trail to mortal and political disaster: to an episode that will soil the image of the United States in the eyes of the world for years to come. They also provide a painful insight into how the skills of the lawyer -- skills that have done so much to protect Americans in this most legalized of countries -- can be misused in the cause of evil.
We have the legal memoranda because committed reporters, from The Washington Post and others in the press, ferreted them out -- until, finally, the government released official texts. Without the press, indeed, the whole torture episode might have remained hidden. The television program Sixty Minutes and Seymour Hersh, in The New Yorker, told the world what had gone on in Abu Ghraib and showed us the pictures. They relied on the unchallengeable findings of an inquiry by Major General Antonio M. Taguba into the conduct of a military police brigade in Iraq. The Taguba Report, too, is in The Torture Papers.
The mindset that produced the legal memos is easy enough to see. After the terrorist attacks of September 11, 2001, the Bush Administration reasoned that the United States was up against an enemy more insidious than any the country had faced. To defeat terrorism, it felt, we must have intelligence on the plans of al Qaeda and others. The United States lacked what is called human intelligence: spies inside terrorist organizations. So officials focused on the hope of getting information by questioning captured terrorist suspects. They asked lawyers in the Justice Department and the Defense Department what methods could be used to extract information from suspects without violating the law.
Any lawyer acting for a business must be asked by its officials, from time to time, "Can we do this?" The lawyer understands that the company executives want her to say "Yes." She is expected to spell out how the company can do what it wants without getting into legal trouble. That was the implicit scenario here. Lawyers were asked how far interrogators could go in putting pressure on prisoners to talk without making themselves, the interrogators, liable for war crimes. Or if that was not the specific question put to the lawyers, they well understood that that was the issue. They responded with the advice that American interrogators could go very far -- to the brink of killing prisoners -- and not face legal consequences.
"Physical pain amounting to torture." Assistant Attorney General Jay S. Bybee advised the Counsel to the President, Alberto Gonzales, "must be equivalent in intensity to the pain accompanying serious physical injury such as organ failure, impairment of bodily function or even death."
That was Bybee's construction of the federal law against torture, to which the United States is a party. He adds that in the Justice Department's view, actions by interrogators "may be cruel, inhuman or degrading, but, still not produce pain and suffering of the requisite intensity."
Reading that advice, one has to imagine an interrogator making nice judgments about the suffering of his victim. In Argentina, during the tyranny of the generals, torturers in secret prisons sometimes had a doctor present at a torture session to judge when the prisoner was in danger of dying. Jacobo Timerman, a newspaper proprietor who was imprisoned by the regime, described how the doctor -- after a torture session -- asked his advice on a financial matter. It was as if the doctor were morally absent from reality.
The premise of the Bush Administration after September 11, 2001, was that the end, fighting terrorism, justified whatever means were chosen. It sought repeatedly to eliminate legal constraints on the means it adopted. Thus in November 2001, President Bush issued an order for trial by military tribunal of non-Americans charged with terrorist crimes. The order forbade the accused from going to any court, American or foreign. Keeping courts out was a major element in several programs.
The legal documents dealt with one large question in addition to the limits on interrogation techniques. That was the status of the hundreds of prisoners brought to the U.S. base at Guantanamo, Cuba, after the war in Afghanistan. Were they protected by the Geneva Convention, which the United States and almost all other countries have signed and which provides for the humane treatment of prisoners taken in conflicts? The Third Geneva Convention lays down rules for deciding whether a captive is a regular soldier, a spy or terrorist, or an innocent person picked up by chance. The issue is to be decided by a "competent tribunal."
In the 1991 Gulf War the American military held 1196 hearings before such tribunals. Most of them found the prisoner to be an innocent civilian. But this time the Bush administration legal memoranda found that the Guantanamo prisoners should not get the hearings required by the Third Geneva Convention.
The fourth memorandum in these volumes, from Deputy Assistant Attorney General John Yoo and another lawyer in the Justice Department's Office of Legal Counsel, Robert J. Delahunty, argued that the Geneva Convention dealt only with state parties, and al Qaeda was not a state. As for Taliban soldiers, it said that Afghanistan under the Taliban was a "failed state" to which the convention also did not apply. Although the Taliban had controlled almost all the country, the memo described it as a mere "militia or faction."
That memo went to White House Counsel Alberto Gonzales on January 9, 2002. Days later President Bush decided that the Third Geneva Convention did not apply to the prisoners at Guantanamo. All of them, he found, were "unlawful combatants" -- a term not found in the convention. He made that finding without any hearings or any opportunity for the prisoners to contest the facts.
On January 26, Secretary of State Powell asked the President to reverse that decision, which he said would "reverse over a century of U.S. policy and practice....and undermine the protections of the law of war for our troops (Memo #8)". The State Department's Legal Adviser, William H. Taft IV, sent a memo (Memo #10) to White House Counsel Gonzales arguing that sticking to Geneva would show that the United States "bases its conduct on its international legal obligations and the rule of law, not just on its policy preferences."
Gonzales rejected the State Department view. In a memorandum (Memo #7) to the President he said, "the nature of the new war [on terrorism] places a high premium on ... the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities ... " He said this "new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners" and made other Geneva provisions "quaint."
The memorandum (Memo #4), submitted on Jan. 9, 2002, by John Yoo and Robert J. Delahunty of the Department of Justice, first raised the idea of overriding presidential power to order the use of torture. It said that "restricting the President's plenary power over military operations (including the treatment of prisoners)" would be "constitutionally dubious."
Seven months later Assistant Attorney General Jay S. Bybee hardened the "constitutionally dubious" argument into a flat assertion of presidential immunity from legal restraints on torture. In a memorandum to White House Counsel Gonzales, Bybee said that in a war like the one against terror, "the information gained from interrogations may prevent future attacks by foreign enemies. Any effort to apply [the criminal law against torture] in a manner that interferes with the President's direction of such core war matter as the detention and interrogation of enemy combatants thus would be unconstitutional."
The argument got further elaboration in a memorandum of March 6, 2003 (Memo #25), from an ad hoc group of government lawyers to Secretary of Defense Donald Rumsfeld, a memo also included in The Torture Papers. "Congress may no more regulate the President's ability to detain and interrogate enemy combatants," it argued, "than it may regulate his ability to direct troop movements on the battlefield." So presidential power overrode the International Convention Against Torture, to which the United States is a party, and the Congressional statute enforcing the convention.
Abu Ghraib became a focus of world attention when the photographs of humiliated prisoners were published. But there was also considerable disquiet about the prison at Guantanamo Bay. There were no incriminating photographs of Guantanamo, and everything about the prison was kept secret. When habeas corpus actions were brought in federal courts to challenge the detention of particular prisoners, the Bush Administration argued that the courts held no jurisdiction to hear the cases. (The Supreme Court eventually rejected that contention.)
But the very secrecy about Guantanamo produced criticism. A judge of Britain's highest court, Lord Steyn, called it a "legal black hole." When some British citizens who had been held there -- after capture not in Afghanistan but in other countries -- were sent home to Britain, they said they had been mistreated.
It also became clear that the American military and the Central Intelligence Agency were holding terrorist suspects at places other than Abu Ghraib and Guantanamo. Some were not listed with the Red Cross, which complained that it was unable to check on the condition of all American prisoners. And some died while under interrogation. One, an Iraqi general, Abed Hamed Mowhoush, was found in an autopsy to have died from "asphyxia due to smothering and chest compression."
What, then, did the legal memoranda on the treatment of prisoners do? A longtime national security advisor to President George H. W. Bush, Donald P. Gregg, wrote in The New York Times that the memoranda "cleared the way for the horrors that have been revealed in Iraq, Afghanistan and Guantanamo and make a mockery of the administration's assertions that a few misguided enlisted personnel perpetrated the vile abuse of prisoners. I can think of nothing that can more devastatingly undercut America's standing in the world or, more important, our view of ourselves, than those decisions."
Jacobo Timerman, the Argentine prisoner mentioned earlier in this introduction, was saved from likely death by pressure from the administration of President Jimmy Carter. He was released and went to Israel. I met him there years later, and we talked about interrogation of prisoners. He asked whether I would agree to torture a prisoner if he knew of a terrorist outrage that would shortly take place. After trying to avoid the question, I finally said, Yes, I would. "No!" he said. "You cannot start down that road."
The Supreme Court of Israel, with many painful examples of terror, agreed with Timerman's view when it considered the question of torture. It rejected the use of torture even when a suspect is thought to know the location of a "ticking bomb."
In an age when the ticking bomb may be a weapon of mass destruction, the question is not always easy to answer. But when officials are tempted to use torture, they should remember that suppositions of what a suspect knows are usually wrong. They should understand that statements extracted by torture have repeatedly been found to be useless. They should know, finally, that torture does terrible damage not only to the victim but to the torturer.
Anthony Lewis
The Torture Papers: The Road to Abu Ghraib includes the full texts of the legal memoranda that sought to argue away the rules against torture. They are an extraordinary paper trail to mortal and political disaster: to an episode that will soil the image of the United States in the eyes of the world for years to come. They also provide a painful insight into how the skills of the lawyer -- skills that have done so much to protect Americans in this most legalized of countries -- can be misused in the cause of evil.
We have the legal memoranda because committed reporters, from The Washington Post and others in the press, ferreted them out -- until, finally, the government released official texts. Without the press, indeed, the whole torture episode might have remained hidden. The television program Sixty Minutes and Seymour Hersh, in The New Yorker, told the world what had gone on in Abu Ghraib and showed us the pictures. They relied on the unchallengeable findings of an inquiry by Major General Antonio M. Taguba into the conduct of a military police brigade in Iraq. The Taguba Report, too, is in The Torture Papers.
The mindset that produced the legal memos is easy enough to see. After the terrorist attacks of September 11, 2001, the Bush Administration reasoned that the United States was up against an enemy more insidious than any the country had faced. To defeat terrorism, it felt, we must have intelligence on the plans of al Qaeda and others. The United States lacked what is called human intelligence: spies inside terrorist organizations. So officials focused on the hope of getting information by questioning captured terrorist suspects. They asked lawyers in the Justice Department and the Defense Department what methods could be used to extract information from suspects without violating the law.
Any lawyer acting for a business must be asked by its officials, from time to time, "Can we do this?" The lawyer understands that the company executives want her to say "Yes." She is expected to spell out how the company can do what it wants without getting into legal trouble. That was the implicit scenario here. Lawyers were asked how far interrogators could go in putting pressure on prisoners to talk without making themselves, the interrogators, liable for war crimes. Or if that was not the specific question put to the lawyers, they well understood that that was the issue. They responded with the advice that American interrogators could go very far -- to the brink of killing prisoners -- and not face legal consequences.
"Physical pain amounting to torture." Assistant Attorney General Jay S. Bybee advised the Counsel to the President, Alberto Gonzales, "must be equivalent in intensity to the pain accompanying serious physical injury such as organ failure, impairment of bodily function or even death."
That was Bybee's construction of the federal law against torture, to which the United States is a party. He adds that in the Justice Department's view, actions by interrogators "may be cruel, inhuman or degrading, but, still not produce pain and suffering of the requisite intensity."
Reading that advice, one has to imagine an interrogator making nice judgments about the suffering of his victim. In Argentina, during the tyranny of the generals, torturers in secret prisons sometimes had a doctor present at a torture session to judge when the prisoner was in danger of dying. Jacobo Timerman, a newspaper proprietor who was imprisoned by the regime, described how the doctor -- after a torture session -- asked his advice on a financial matter. It was as if the doctor were morally absent from reality.
The premise of the Bush Administration after September 11, 2001, was that the end, fighting terrorism, justified whatever means were chosen. It sought repeatedly to eliminate legal constraints on the means it adopted. Thus in November 2001, President Bush issued an order for trial by military tribunal of non-Americans charged with terrorist crimes. The order forbade the accused from going to any court, American or foreign. Keeping courts out was a major element in several programs.
The legal documents dealt with one large question in addition to the limits on interrogation techniques. That was the status of the hundreds of prisoners brought to the U.S. base at Guantanamo, Cuba, after the war in Afghanistan. Were they protected by the Geneva Convention, which the United States and almost all other countries have signed and which provides for the humane treatment of prisoners taken in conflicts? The Third Geneva Convention lays down rules for deciding whether a captive is a regular soldier, a spy or terrorist, or an innocent person picked up by chance. The issue is to be decided by a "competent tribunal."
In the 1991 Gulf War the American military held 1196 hearings before such tribunals. Most of them found the prisoner to be an innocent civilian. But this time the Bush administration legal memoranda found that the Guantanamo prisoners should not get the hearings required by the Third Geneva Convention.
The fourth memorandum in these volumes, from Deputy Assistant Attorney General John Yoo and another lawyer in the Justice Department's Office of Legal Counsel, Robert J. Delahunty, argued that the Geneva Convention dealt only with state parties, and al Qaeda was not a state. As for Taliban soldiers, it said that Afghanistan under the Taliban was a "failed state" to which the convention also did not apply. Although the Taliban had controlled almost all the country, the memo described it as a mere "militia or faction."
That memo went to White House Counsel Alberto Gonzales on January 9, 2002. Days later President Bush decided that the Third Geneva Convention did not apply to the prisoners at Guantanamo. All of them, he found, were "unlawful combatants" -- a term not found in the convention. He made that finding without any hearings or any opportunity for the prisoners to contest the facts.
On January 26, Secretary of State Powell asked the President to reverse that decision, which he said would "reverse over a century of U.S. policy and practice....and undermine the protections of the law of war for our troops (Memo #8)". The State Department's Legal Adviser, William H. Taft IV, sent a memo (Memo #10) to White House Counsel Gonzales arguing that sticking to Geneva would show that the United States "bases its conduct on its international legal obligations and the rule of law, not just on its policy preferences."
Gonzales rejected the State Department view. In a memorandum (Memo #7) to the President he said, "the nature of the new war [on terrorism] places a high premium on ... the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities ... " He said this "new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners" and made other Geneva provisions "quaint."
The memorandum (Memo #4), submitted on Jan. 9, 2002, by John Yoo and Robert J. Delahunty of the Department of Justice, first raised the idea of overriding presidential power to order the use of torture. It said that "restricting the President's plenary power over military operations (including the treatment of prisoners)" would be "constitutionally dubious."
Seven months later Assistant Attorney General Jay S. Bybee hardened the "constitutionally dubious" argument into a flat assertion of presidential immunity from legal restraints on torture. In a memorandum to White House Counsel Gonzales, Bybee said that in a war like the one against terror, "the information gained from interrogations may prevent future attacks by foreign enemies. Any effort to apply [the criminal law against torture] in a manner that interferes with the President's direction of such core war matter as the detention and interrogation of enemy combatants thus would be unconstitutional."
The argument got further elaboration in a memorandum of March 6, 2003 (Memo #25), from an ad hoc group of government lawyers to Secretary of Defense Donald Rumsfeld, a memo also included in The Torture Papers. "Congress may no more regulate the President's ability to detain and interrogate enemy combatants," it argued, "than it may regulate his ability to direct troop movements on the battlefield." So presidential power overrode the International Convention Against Torture, to which the United States is a party, and the Congressional statute enforcing the convention.
Abu Ghraib became a focus of world attention when the photographs of humiliated prisoners were published. But there was also considerable disquiet about the prison at Guantanamo Bay. There were no incriminating photographs of Guantanamo, and everything about the prison was kept secret. When habeas corpus actions were brought in federal courts to challenge the detention of particular prisoners, the Bush Administration argued that the courts held no jurisdiction to hear the cases. (The Supreme Court eventually rejected that contention.)
But the very secrecy about Guantanamo produced criticism. A judge of Britain's highest court, Lord Steyn, called it a "legal black hole." When some British citizens who had been held there -- after capture not in Afghanistan but in other countries -- were sent home to Britain, they said they had been mistreated.
It also became clear that the American military and the Central Intelligence Agency were holding terrorist suspects at places other than Abu Ghraib and Guantanamo. Some were not listed with the Red Cross, which complained that it was unable to check on the condition of all American prisoners. And some died while under interrogation. One, an Iraqi general, Abed Hamed Mowhoush, was found in an autopsy to have died from "asphyxia due to smothering and chest compression."
What, then, did the legal memoranda on the treatment of prisoners do? A longtime national security advisor to President George H. W. Bush, Donald P. Gregg, wrote in The New York Times that the memoranda "cleared the way for the horrors that have been revealed in Iraq, Afghanistan and Guantanamo and make a mockery of the administration's assertions that a few misguided enlisted personnel perpetrated the vile abuse of prisoners. I can think of nothing that can more devastatingly undercut America's standing in the world or, more important, our view of ourselves, than those decisions."
Jacobo Timerman, the Argentine prisoner mentioned earlier in this introduction, was saved from likely death by pressure from the administration of President Jimmy Carter. He was released and went to Israel. I met him there years later, and we talked about interrogation of prisoners. He asked whether I would agree to torture a prisoner if he knew of a terrorist outrage that would shortly take place. After trying to avoid the question, I finally said, Yes, I would. "No!" he said. "You cannot start down that road."
The Supreme Court of Israel, with many painful examples of terror, agreed with Timerman's view when it considered the question of torture. It rejected the use of torture even when a suspect is thought to know the location of a "ticking bomb."
In an age when the ticking bomb may be a weapon of mass destruction, the question is not always easy to answer. But when officials are tempted to use torture, they should remember that suppositions of what a suspect knows are usually wrong. They should understand that statements extracted by torture have repeatedly been found to be useless. They should know, finally, that torture does terrible damage not only to the victim but to the torturer.