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Making Torture Legal

1.

Reading through the memoranda written by Bush administration lawyers on how prisoners of the “war on terror” can be treated is a strange experience. The memos read like the advice of a mob lawyer to a mafia don on how to skirt the law and stay out of prison. Avoiding prosecution is literally a theme of the memoranda. Americans who put physical pressure on captives can escape punishment if they can show that they did not have an “intent” to cause “severe physical or mental pain or suffering.” And “a defendant could negate a showing of specific intent…by showing that he had acted in good faith that his conduct would not amount to the acts prohibited by the statute.”

These quotations are from a draft report to Secretary of Defense Donald Rumsfeld by an ad hoc group of lawyers he chose, mostly political appointees in the Defense and other departments, to advise him on interrogation techniques for prisoners at Guantánamo Bay. The report is dated March 6, 2003; on the title page it says, “Classified by: Secretary Rumsfeld.”

Another theme in the memoranda, an even more deeply disturbing one, is that the President can order the torture of prisoners even though it is forbidden by a federal statute and by the international Convention Against Torture, to which the United States is a party.

The idea that presidential power overrides treaties and congressional laws appeared soon after the terrorist attacks of September 11, 2001. John Yoo, a professor at the University of California in Berkeley, was then a deputy assistant attorney general. He wrote several memos in late 2001 and then, in collaboration with Robert J. Delahunty, another Justice Department lawyer, an important paper dated January 9, 2002. It was addressed to the Defense Department’s general counsel, William J. Haynes II. “Restricting the President’s plenary power over military operations (including the treatment of prisoners)” would be “constitutionally dubious,” the memo said.

In August 2002 the Justice Department prepared a further memorandum for the White House. The author was Assistant Attorney General Jay S. Bybee, head of the department’s Office of Legal Counsel. The fifty-page memorandum* embraced the constitutional argument. In a war like the present one, it said, “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 matter as the detention and interrogation of enemy combatants thus would be unconstitutional.”

The Defense Department memorandum of March 2003 incorporated the ideas and much of the language in the Bybee memo. It expressed the idea of impervious presidential power in sweeping terms:

In order to respect the President’s inherent constitutional authority to manage a military campaign,… (the prohibition against torture) must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority…. Congress may no more regulate the President’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield…. Any effort by Congress to regulate the interrogation of unlawful combatants [terrorists] would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President.

The March 6 memorandum adds a helpful warning to torturers: “As this authority is inherent in the President, exercise of it by subordinates would be best if it can be shown to have been derived from the President’s authority through Presidential directive or other writing.”

Both the Bybee and Defense Department memoranda parse the laws against torture in minute detail to suggest defenses against potential torture charges. One remarkable suggestion is that an interrogator who harmed a prisoner could rely on the argument of “self-defense” as a legal justification—defense not of himself but of the nation:

As [the Department of Justice] has made clear in opinions involving the war on al Qaida, the nation’s right to self-defense has been triggered by the events of September 11. If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaida terrorist network. In that case, DOJ believes that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.

The memoranda also repeatedly seek to give narrow definitions of prohibited acts. The Defense Department report said the administration of drugs to prisoners would violate a prohibition on disrupting “profoundly the sense or personality” of a prisoner only if it produced “an extreme effect” and was calculated to do so. The Bybee memorandum said that to be torture, treatment of a prisoner must inflict more than moderate or fleeting pain: torture “must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”

Another argument is especially ingenious—or perhaps the proper adjective is hypocritical. The federal statute against torture is limited to acts committed “outside the United States.” The Guantánamo Bay naval base “is included within the special naval and maritime jurisdiction of the US,” the Defense Department memorandum of March 2003 says, so torture there would not be covered. In the Guantánamo cases that are now awaiting decision in the Supreme Court, the Bush administration strenuously argued the opposite: that Guantánamo is under Cuban sovereignty and hence is outside the jurisdiction of United States courts.

One other large subject is treated in the Bush administration’s various legal documents. That is whether the prisoners at Guantánamo Bay are covered by the Geneva Conventions, to which the United States and almost all other countries are parties and which lay down rules for the humane treatment of prisoners taken in conflicts. The Third Geneva Convention, in particular, provides a mechanism for deciding whether someone in custody is a regular soldier in an opposing force, a saboteur or terrorist, or an innocent civilian picked up by chance. The mechanism required is a hearing before a “competent tribunal.”

In the 1991 Gulf War the US military held 1,196 such hearings before military tribunals. In almost 75 percent of these the prisoners were found by the tribunals to be innocent civilians, and were freed. But after the war in Afghanistan, successive government legal memoranda found that neither al-Qaeda members nor Taliban soldiers qualified for treatment under the Third Geneva Convention. The discussion began with the Yoo-Delahunty memorandum of January 9, 2002.

The memo quickly concluded that the Geneva Convention dealt only with state parties, and al-Qaeda was not a state. As for Taliban soldiers, it argued that Afghanistan under the Taliban was a “‘failed state’ whose territory had been largely overrun and held by violence by a militia or faction rather than by a government.” One can readily agree that the Taliban was a cruel and violent movement, but its government controlled all of the country except a small sliver in the north.

Shortly after that memorandum of January 9, 2002, President Bush made a finding that the Geneva Conventions did not cover the prisoners held at Guantánamo. All of them, he found, were “unlawful combatants,” a term not found in the Geneva Conventions. Secretary of State Colin Powell asked the President to reconsider the decision. In a memorandum to the White House counsel, Alberto Gonzales, and the national security adviser, Condoleezza Rice, he argued that the Third Geneva Convention should cover the Afghan conflict. He said the prisoners could still be found to be “unlawful combatants” under the Third Geneva Convention, but only after individual hearings for all who requested them.

The debate between the two views on Geneva was really a debate between traditional American views of law and the radically different outlook of the Bush lawyers. The legal adviser to the State Department, William H. Taft IV, in a memo of his own to Gonzales, supported Powell’s position, saying that it would demonstrate that the United States “bases its conduct on its international legal obligations and the rule of law, not just on its policy preferences.” Secretary Powell said that making Geneva inapplicable at Guantánamo would “reverse over a century of US policy and practice… and undermine the protections of the law of war for our troops….”

Counsel Gonzales, in a January 25, 2002, memorandum to the President, rejected the State Department’s arguments. “The nature of the new war” on terrorism, he wrote, “places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians…. This new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners” and ren- ders other Geneva provisions “quaint.” President Bush agreed.

The Bush administration’s order to treat all the prisoners at Guantánamo as “unlawful combatants” was an extraordinary unilateral judgment on the fate of hundreds of prisoners. How could anyone know that they were all terrorists without any fact-finding process? (And even suspected terrorists are protected by the Convention Against Torture.)

A Pentagon spokesman, Bryan Whitman, said this May in response to charges about the treatment of Guantánamo prisoners: “These are people who are unlawful combatants, picked up on the battlefield.” We know, however, that at least some were not picked up on the Afghan battlefield but arrested in countries as far away as Zambia, turned over to American authorities, and sent to Guantánamo. And some intelligence officers say that many of those held at Guantánamo were civilian Afghans picked up by mistake during the war.

Secretary Powell predicted, correctly, that making the Geneva Conventions inapplicable at Guantánamo would hurt the United States seriously in world opinion. But Secretary Rumsfeld dismissed foreign criticism, in 2002, as “isolated pockets of international hyperventilation.”

2.

The issues raised by the Bush administration’s legal assertions in its “war on terror” are so numerous and so troubling that one hardly knows where to begin discussing them. The torture and death of prisoners, the end result of cool legal abstractions, have a powerful claim on our national conscience. They are described in horrifying detail in a report published recently by Human Rights Watch, “The Road to Abu Ghraib.” But equally disturbing, in its way, is the administration’s constitutional argument that presidential power is unconstrained by law.

President Bush and his administration have used the September 11 attacks again and again as an argument for expanded executive power. A signal example is the claim that the President can designate any American citizen as an “enemy combatant” and have him or her imprisoned in soli-tary confinement, indefinitely, without trial or access to counsel. That is the claim now before the Supreme Court in the cases of José Padilla and Yasser Hamdi.

The assertion in the various legal memoranda that the President can order the torture of prisoners despite statutes and treaties forbidding it was another reach for presidential hegemony. The basic premise of the American constitutional system is that those who hold power are subject to the law. As John Adams first said, the United States is meant to be a government of laws, not men. For that Bush’s lawyers seem ready to substitute something like the divine right of kings.

For me, the twisting of the law by lawyers is especially troubling. I have spent my life believing that the safety of this difficult, diverse country lies to a significant extent in the good faith of lawyers—in their commitment to respect the rules. But the Bush lawyers have been brazen in their readiness to twist, dissemble, and invent in the cause of power.

There was a small but telling example of dissembling soon after September 11. On November 13, 2001, President Bush issued his order for trial by military commissions of noncitizens suspected of supporting terrorism. The order said explicitly that a person tried by commission “shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly…in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal.”

The prohibition against seeking review in any civilian court came under criticism. On November 30 Bush’s counsel, Alberto Gonzales, wrote an Op-Ed piece for The New York Times, seeming to offer reassurance. The military commission order, he said, “preserves judicial review in civilian courts.” That appeared to be in direct conflict with the text of the order. But Gonzales went on to say that he was talking about the right to seek a writ of habeas corpus.

Ordinary readers would think that Gonzales’s promise of “judicial review” meant a right to appeal factual findings or legal rulings by a military commission. But habeas corpus would allow only a challenge to Bush’s establishment of the commissions, not to any factual or legal decisions by a commission. A number of military-officer lawyers appointed by the Pentagon to defend Guantánamo prisoners in forthcoming commission trials have protested the fact that they will not be permitted to appeal to civilian courts.

Then there was the performance by Solicitor General Theodore B. Olson this year in the Padilla case. After the Supreme Court agreed to hear it, the government suddenly told Padilla’s lawyers that they could meet with their client—as a one-time act of grace. When the lawyers got to the South Carolina brig where Padilla is confined, they saw him in the next room, behind a glass wall. They were not allowed to ask any questions about how he had been treated. Two government officials sat in on the conversation, and it was videotaped. So the lawyers could not have a substantive discussion with Padilla about what he had or had not done. But Solicitor General Olson told the Supreme Court in a brief that the meeting was a reason not to consider the issue of Padilla’s right to counsel.

A further amazing turn in the Padilla case came weeks after it was argued in the Supreme Court, while it was awaiting decision. The deputy attorney general, James B. Comey Jr., released a lengthy document stating what the government said Padilla had done to help al-Qaeda. It made sensational claims, but of course it was completely one-sided, with no comment by Padilla or his lawyers.

Comey’s intervention was so crude that one wonders what he hoped to achieve by it. Could he conceivably have hoped to move members of the Supreme Court toward the government’s position, in favor of the endless confinement of Padilla without trial? Whatever his reason, Comey’s action was of a kind that used to be considered beyond the pale for government lawyers.

Should the Bush lawyers face professional sanctions for their irresponsible arguments in favor of abandoning the law? Alberto Gonzales says the Geneva Conventions are “quaint” and “obsolete.” Does he believe that any treaty can thus be dismissed when it is inconvenient to an American government? How would he feel if other governments took the same view, to our inconvenience?

Scott Horton, the past chairman of the international human rights committee of the Association of the Bar of the City of New York, thinks the Bush lawyers should face professional sanctions for seeking ways to avoid punishment for illegal torture of prisoners. “There are serious professional shortcomings here,” he told the Financial Times. “Lawyers who are employed by the US government have a responsibility to uphold and enforce the laws of the United States. To make an argument that the President’s wartime powers give him the right to avoid these statutes is preposterous.”

There is a French phrase for betrayal of standards by intellectuals: la trahison des clercs. I think this is a lawyer’s version: la trahison des avocats.

Horton and his committee were alerted to problems in the treatment of Afghan and Iraqi prisoners by an extraordinary visit from a small group of officers working in the military’s Judge Advocate General’s corps. The officers said little, evidently feeling unable to discuss the legal memoranda that troubled them because the documents were classified. But they expressed their concern. Among other things they noted that a longstanding rule requiring the presence of JAG officers at places of detention and interrogation had been eliminated. The visit sent a signal.

Not only that JAG group was concerned. Other elements of the military were worried that the nod and wink at torture, and the abandonment of the Geneva Conventions at Guantánamo, would undermine the longstanding US military tradition of emphasis on proper conduct in war. Guantánamo was the first time since the promulgation of the Geneva Conventions in 1949 that the United States has failed to follow these treaties in a sustained conflict.

Again, Army field manuals have long had strict rules for intelligence interrogations. Among other things the rules bar forcing the prisoner to occupy a painful position for prolonged periods, and prohibit sleep deprivation. Those were two of the pressure tactics the Bush administration adopted in Iraq, and the recent Human Rights Watch report presents evidence of far worse treatment.

Secretary Rumsfeld and Vice President Dick Cheney thought the military field manuals were too restrictive. In the fall of 2002 and early 2003 they tried to change them, but JAG lawyers said the changes could not be reconciled with US domestic law or treaties.

With or without revisions in the field manuals, the limits on interrogation techniques were changed by Secretary Rumsfeld and, the evidence indicates, by the director of central intelligence, George Tenet, for CIA detainees. The new rules have not been disclosed. But what was done to some prisoners is known, in appalling detail.

The Human Rights Watch report describes, in language that is if anything understated, such things as the killing of Iraqi military officers who were in American custody and were being interrogated. One was Major General Abed Hamed Mowhoush, who had been the chief of Iraqi air defenses. He was captured in October 2003 and died on November 26, 2003, in a US detention facility in Iraq. At first the Pentagon released a death certificate saying that he had died of “natural causes.” But after a Denver Post story questioned the circumstances of his death, the Pentagon admitted that an autopsy report said General Mowhoush died of “asphyxia due to smothering and chest compression” and said there was “evidence of blunt force trauma to the chest and legs.” The Pentagon said a homicide investigation was underway.

Another Iraqi officer, Lieutenant Colonel Kareem ‘Abd al-Jalil, died on January 9, 2004, while at an interrogation facility. The original death certificate said he died of “natural causes… during his sleep.” After stories in the Denver Post and on German television indicating that American soldiers had “danced on his belly,” the Pentagon issued a new death certificate describing his death as a homicide from “blunt force injuries and asphyxia.” Those two were regular Iraqi officers, not terrorists. In American history, until now, flag and field officers of opposing armies were given great respect when captured.

The full name of the torture convention is the Convention Against Torture and Other Cruel, Inhuman, Degrading Treatment or Punishment. The Human Rights Watch report gives examples of treatment that was deliberately degrading. A British subject who was detained at Guantánamo, Tarek Dergoul, and who was released and sent home to Britain last March, said he was chained to the floor in an interrogation room for long periods, alone. Eventually he would have to urinate, on himself. “As soon as I wet myself, a woman MP would come in yelling, ‘Look what you’ve done! You’re disgusting.’”

A New York Times story on June 8 described how forced nudity at Abu Ghraib was a widespread and longstanding practice. Detainees were paraded naked, ordered to do jumping exercises and sing “The Star-Spangled Banner” in the nude, and made to stand on boxes with their arms out-stretched. All that, and worse, be-gan long before the seven soldiers whose abuses were displayed in the famous photographs arrived at Abu Ghraib.

A report in The Washington Post on June 11 said US intelligence officers at Abu Ghraib prison used unmuzzled military dogs to frighten and intimidate detainees during interrogations. The story said dog handlers had told military investigators that the use of the dogs was approved by the chief intelligence officer at Abu Ghraib. A military interrogator said dog handlers had a “contest” to see how many detainees they could make involuntarily urinate out of fear of the dogs.

Major General Geoffrey D. Miller was in charge of interrogation at Guantánamo. In August 2003, Secretary Rumsfeld had his top intelligence aide, Stephen A. Cambone, send General Miller to Iraq to improve acquisition of intelligence by questioning detainees. General Miller later took over in Iraq.

An Army captain, Carolyn A. Wood, who had served at the Bagram de-tention center in Afghanistan while two detainees died there in what were called homicides, was moved to Iraq. There, the Human Rights Watch Report said, she applied interrogation techniques used in Afghanistan. The report said it was believed to be Captain Wood who posted at Abu Ghraib a list of methods to be used, including hooding of prisoners, sleep deprivation for up to seventy-two hours, and stressful positions for up to forty-five minutes. General Ricardo Sanchez, the commander in Iraq, evidently approved the use of these methods—because after the Abu Ghraib photographs were published this May he issued an order rescinding approval.

Given the known facts, the notion that the photographed outrages at Abu Ghraib were just the actions of a few sick men and women, as President Bush has repeatedly argued, is beyond belief. The International Committee of the Red Cross called the attention of American officers in Iraq to mistreatment at Abu Ghraib that it said “included deliberate physical violence,” forced nudity, and “being forced to remain for prolonged periods in painful stress positions.” It said that such “methods of physical and psychological coercion were used by military intelligence in a systematic way to gain confessions and extract information” (emphasis added). That IRC report, made on December 24, 2003, was met with a letter from Brigadier General Janis Karpinski, who ran the prison, saying that prisoners of “significant intelligence value” were not entitled to the full protection of the Geneva Conventions. The letter also called on the IRC not to make no-notice inspections of the cell block where the worst abuses were taking place.

Donald P. Gregg, a longtime national security adviser to George H.W. Bush, said in an Op-Ed piece for The New York Times that the lawyers’ memoranda arguing for removal of prohibitions on torture

cleared the way for the horrors that have been revealed in Iraq, Afghanistan and Guantánamo and make a mockery of the administration 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 these decisions.

What is still not clear is exactly who acted on the lawyers’ advice, and precisely what action was taken. Secretary Rumsfeld approved the use of special interrogation techniques on suspected key terrorist figures; that much is known. But he has refused to disclose, publicly or to the Senate, what the approved special techniques were. We do know that the interrogations have had some tragic consequences. The Army has admitted that at least thirty-nine prisoners in Iraq and Afghanistan died, and some of them died while being interrogated.

Moreover, according to the International Committee of the Red Cross, between 75 and 90 percent of Iraqi civilians arrested by Coalition forces were “arrested by mistake,” often with the use of brutal tactics. IRC officers brought those facts and its findings on prison brutality to high American officials.

Who, then, might be held responsible for this wrongdoing? The Bybee memorandum of August 2002, arguing on behalf of the Justice Department that the President could order the use of torture, was addressed to the White House counsel, Alberto Gonzales. What action did President Bush take on it? One possibility is that the President, told by his lawyers that he had full discretion to disregard legal limitations, delegated that power to Rumsfeld and Tenet. Did Bush say something in a formal order? Did he simply indicate to Rumsfeld and Tenet that they could deal with their prisoners in whatever ways they felt were necessary to extract information?

One thing at least should be made clear by this sordid episode in American history. The Framers of our Constitution knew what they were doing when they erected barriers against absolute government power—when they balanced the president’s power against that of Congress and the courts.

Justice Robert H. Jackson of the Supreme Court made a famously tart comment on presidential claims of an overriding war power. In 1952, during the Korean War, the country’s steel mills faced a strike. President Truman seized the mills to prevent the strike. The Supreme Court held the seizure unconstitutional in the absence of authorizing legislation by Congress. The President’s lawyers argued that he had inherent power to do what was necessary for the war effort. Justice Jackson said: “There are indications that the Constitution did not contemplate that the title Commander-in-Chief of the Army and Navy will constitute him also Commander-in-Chief of the country, its industries and its inhabitants.”

Today the Supreme Court has before it the broad claim of presidential power in the Hamdi and Padilla cases. Historically, the Court has been reluctant to challenge executive assertions of power in wartime. This time it could send a strong signal that there are limits by finding President Bush without the power to detain Americans indefinitely without trial.

But we cannot look to the Supreme Court for answers to the torture and inhuman treatment of prisoners in Iraq and Afghanistan. The answer will have to come from the political system. It could, conceivably, be a congressional investigation, perhaps by a special joint committee; but so far, at least, members of Congress do not seem to have the appetite for that. Nor can we expect real results from various investigations being undertaken by the armed forces.

The situation calls for a criminal investigation by an independent prosecutor armed with subpoena power—and with the ethical commitment of such a person as Archibald Cox. It goes without saying that Attorney General Ashcroft cannot be in charge. Soon after September 11 he made his idea of constitutionalism plain when he said that those who expressed concern about the impact of administration measures on civil liberties were aiding the terrorists. In Senate testimony on the torture scandal this month he stonewalled attempts to find out who ordered what.

A committed prosecutor would do what investigators of official crimes have done since Nuremberg: apply the principle of command responsibility and work his way up the chain to the source of misconduct. That principle is why Slobodan Milosevic is in the dock in The Hague.

It will hardly be easy to get an independent prosecutor for this task. George W. Bush and Karl Rove will do all they can to prevent a real investigation. It will take great pressure from the public and Congress. But there is no other visible way for America to recover its good name—and its moral sense of itself.

—June 17, 2004

  1. *

    The text is available at: www.washingtonpost.com/wp-srv/nation/documents/dojinterrogationmemo20020801.pdf. The text of the March 6, 2003, Defense Department memorandum is available at: news.findlaw.com/wp/docs/torture /30603wgrpt.html.

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