• Email
  • Single Page
  • Print

What to Do About the Torturers?

Donald Rumsfeld; drawing by Pancho

The story of America’s descent into torture in the wake of the terrorist attacks of September 11, 2001, has been told now by many writers. Mark Danner, Jane Mayer, and Ron Suskind have written brilliant expositions of the facts, showing how the drive to prevent the next attack led the administration’s highest officials to seek ways around the legal restrictions on coercive interrogation of suspects.1 After the abuses at Abu Ghraib came to light, the military itself commissioned three detailed investigative reports, including highly critical ones by Major General Antonio Taguba and by a panel led by former defense secretary James Schlesinger. Among other factors, they blamed ambiguity in the standards governing interrogation—an ambiguity ultimately attributable to the attempts at evasion directed from the top. Congressional committees have held numerous public hearings into the use of coercive interrogation tactics at both Abu Ghraib and Guantánamo. The Center for Constitutional Rights, the ACLU, and the NYU Center on Law and Security have each published collections of official documents, which effectively indict the government using its own words.2

But undoubtedly the most unusual and deeply revealing take on the subject is the work of the British lawyer and law professor Philippe Sands. As Alexis de Tocqueville showed long ago, sometimes it takes the eyes of an outsider to show us ourselves. Sands, a leading international lawyer and a professor at University College London, took it upon himself to conduct his own personal investigation of one aspect of the torture policy—the Army’s adoption of coercive tactics to interrogate suspects at Guantánamo. This policy was not the worst of the post–September 11 abuses. As far as we know, no one has been waterboarded at Guantánamo, as some were at the CIA’s secret “black sites,” nor have any suspects been killed in interrogation, as happened on several occasions elsewhere. No one we know of has been rendered from Guantánamo to another country to be tortured, although some prisoners who were earlier subject to rendition and torture have since been transferred to Guantánamo.

But precisely because the Army’s interrogation policy was not the worst of the worst—to borrow a phrase—its story may actually be more instructive. The CIA has always operated to a significant degree outside the law. The military, by contrast, is at its core an institution committed to discipline and order, strictly governed by the laws of war. So the fact that illegal abusive tactics were officially authorized at the Pentagon’s highest levels is in some sense more shocking than the CIA’s crimes. We should expect more of the military.

America’s experiment with torture presents the Obama administration with one of its most difficult challenges: how should the nation account for the abuses that have occurred in the past, what are the appropriate remedies, and how can we ensure that such abuses not happen again? Torture Team offers new insight into what will surely be one of the leading human rights issues of the next several years.

1.

Sands began his investigation, as any good lawyer would, with the documents—from a memo drafted by Lieutenant Colonel Diane Beaver, a staff lawyer for the Army stationed at Guantánamo; to a log detailing the interrogation of “Detainee 063,” Mohammed al-Qahtani; to a one-page memo drafted by William Haynes, Department of Defense general counsel, and signed by Defense Secretary Donald Rumsfeld himself, authorizing a series of coercive interrogation tactics beyond anything the military had previously permitted. In signing that memo, which approved sixteen coercive tactics, including forcing suspects to stand for up to four hours straight, Rumsfeld scribbled in the margin, “I stand for 8–10 hours a day. Why is standing limited to 4 hours?” As that comment itself suggests, these documents chillingly underscore the mundane banality with which cruelty and torture became official policy of the United States Department of Defense.

The smoking gun is the Army’s log of the interrogation of Mohammed al-Qahtani. Al-Qahtani was thought to be the twentieth hijacker; he was denied entry to the United States in August 2001 at Orlando Airport, where Mohamed Atta, the leader of the September 11 attacks, was waiting to meet him. It was his interrogation that prompted the military to authorize new coercive techniques. The log of al-Qahtani’s interrogation, leaked to the press and initially published by Time magazine, provides a detailed, minute-by-minute account of the tactics employed against al-Qahtani, all of which had been approved by Rumsfeld in his one-page memo.

Over fifty-four days, beginning in late 2002, al-Qahtani was interrogated for eighteen to twenty hours each day, denied anything more than four hours’ sleep per night, threatened with dogs, stripped naked, hooded, forced to wear women’s underwear on his head, humiliated sexually by female interrogators, subjected to extreme heat and cold and loud noises, doused with cold water, and injected with intravenous fluid and not allowed to go to the bathroom so that he urinated on himself. The account has been public for some time, but Sands brings it to life, using it as a kind of drumbeat of reality throughout the book by closing nearly every chapter with a short excerpt from the log.

The Army investigated the interrogation of al-Qahtani and concluded that no laws were broken and that nothing inhumane was done. Sands took the log to Dr. Abigail Seltzer, a London-based psychiatrist who consults with the Medical Foundation for the Care of Victims of Torture, in order to obtain an expert assessment. She was exceedingly thorough, marking each time that al-Qahtani was subjected to abusive treatment, required medical care, or expressed distress, but also noting each time his rights were respected. She was cautious in her analysis, remarking on the absence of physical violence and the extremely organized and disciplined way in which the tactics were employed. (Only the US Army could conduct—and record—torture with such meticulous attention to detail.)

When Sands asked Dr. Seltzer whether she thought the treatment had produced severe physical or mental pain, the legal threshold for torture, she pointed to the Army’s own recording of al-Qahtani’s expressions of distress. Sands puts them together in a single quotation, editing out the tactics that produced the reactions. It is the closest thing we have to seeing the experience through the eyes of its victim, and it is truly harrowing. Here is a portion:

Detainee began to cry. Visibly shaken. Very emotional. Detainee cried. Disturbed. Detainee began to cry. Detainee butted SGT R in the eye. Detainee bit the IV tube completely in two. Started moaning. Uncomfortable. Moaning. Turned his head from left to right. Began crying hard spontaneously. Crying and praying. Began to cry. Claimed to have been pressured into making a confession. Falling asleep. Very uncomfortable. On the verge of breaking. Angry. Detainee struggled. Detainee asked for prayer. Very agitated. Yelled. Agitated and violent. Detainee spat. Detainee proclaimed his innocence. Whining. Pushed guard. Dizzy. Headache. Near tears. Forgetting things. Angry. Upset. Complained of dizziness. Tired. Agitated. Yelled for Allah. Started making faces. Near crying. Irritated. Annoyed. Detainee attempted to injure two guards. Became very violent and irate. Attempted to liberate himself. Struggled. Made several attempts to stand up. Screamed….

Dr. Seltzer concluded that al-Qahtani had undoubtedly suffered severe emotional and possibly physical distress.

What makes Sands’s book most intriguing, however, is that he does not merely analyze the documentary evidence. Instead, he personally set out to interview as many of the participants in this sordid tale as would talk to him. Remarkably, nearly all of them did—including Diane Beaver; Major General Michael Dunlavey, commanding officer at Guantánamo until November 2002; Douglas Feith, a leading neoconservative and, as undersecretary of defense for policy, the number three man in the Department of Defense; and General Richard Myers, chairman of the Joint Chiefs of Staff. Sands also interviewed FBI lawyers, military interrogators, the general counsels for the Department of Defense and the Navy, and several others involved in the decision-making process.

Why would so many people willingly talk to a stranger about their roles in the development and implementation of a policy that led to torture, one of the most harshly condemned practices known to mankind? In part, Sands’s ability to gain access may have turned on his outsider status—as a British lawyer studying the role of lawyers in the war on terror, he was not obviously identified with any side of the warring camps within the United States on this subject. A Google search, however, would have quickly led the people he interviewed to see that his previous book, Lawless World: America and the Making and Breaking of Global Rules from FDR’s Atlantic Charter to George W. Bush’s Illegal War,3 was a biting critique of the United States’ role in the realm of international law in recent years. In fact, several of the officials he approached appear to have done just that, and after initially agreeing to an interview, sought to back out at the last moment. But Sands always managed to talk his way into getting the interview anyway, and in most cases was able to build a strong rapport with his subjects, leading them to be remarkably candid in their responses to his questions.

The more convincing explanation for why so many decided to talk to Sands is that they felt they had done nothing wrong. Douglas Feith, for example, practically gloats about his role in formulating the administration’s policy that the Geneva Conventions did not protect al-Qaeda or Taliban fighters. This determination, announced publicly by President Bush in February 2002, cleared the way for coercive interrogation, because if the Geneva Conventions applied, any cruel, inhumane, or degrading treatment of detainees was absolutely forbidden by Common Article 3, which sets a minimum baseline of human rights protections for all detained persons, whether or not they are uniformed fighters. Sands pressed this point with Feith, prompting a striking admission. As Sands relays the dialogue:

I was…curious about the connection between the decision on Geneva and the new interrogation rules approved by Rumsfeld at the end of 2002…. I observed to Feith that his memo to the President and the Geneva decision meant that its constraints on interrogation didn’t apply to anyone at Guantánamo. “Oh yes, sure,” he shot back. So that was the intention, I asked. “Absolutely,” he replied, without any hesitation. Under the Geneva Conventions no one there was entitled to any protection. “That’s the point.”

Sands’s interviews sometimes persuaded him to adopt a more sympathetic understanding of particular protagonists in the torture story. Thus, he portrays Diane Beaver, the lawyer who wrote the initial Army memo justifying coercive interrogation, including waterboarding, as well-meaning if deeply wrong. She was simply out of her depth, Sands suggests, since she had no real experience or serious training in the legal issues about which she was asked to give her opinions.

What’s more, Sands contends, Beaver was in reality a scapegoat. The administration sought to portray the decision to use coercive tactics as originating from Guantánamo, but Sands makes a convincing case that the decision in fact came from the top—from Feith, Rumsfeld, Haynes, David Addington (Dick Cheney’s legal counsel at the time), Justice Department lawyer John Yoo, and White House Counsel Alberto Gonzales, among others. Beaver’s October 2002 memo was largely unnecessary, since it was written after the critical legal decisions had already been made in Washington. By the time Beaver wrote it, President Bush had already publicly declared that Guantánamo detainees were not protected by the Geneva Conventions, and John Yoo and Jay Bybee had already written the infamous August 2002 Justice Department “torture memo” at Gonzales’s request. This memo argued that as commander in chief, the president could order torture without fear of criminal liability, and that in any event the torture statute did not prohibit threats of death, as long as the threatened death was not imminent; nor did it prohibit the infliction of intense physical pain, so long as the pain did not rise to the severity associated with organ failure or death itself. In the wake of such opinions, what a staff lawyer at Guantánamo thought was beside the point.

  1. 1

    Mark Danner, Torture and Truth: America, Abu Ghraib, and the War on Terror (New York Review Books, 2004) ; Jane Mayer, The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals (Doubleday, 2008) ; Ron Suskind, The One-Percent Doctrine: Deep Inside America’s Pursuit of Its Enemies Since 9/11 (Simon and Schuster, 2006).

  2. 2

    Michael Ratner and the Center for Constitutional Rights, The Trial of Donald Rumsfeld ; Jameel Jaffer and Amrit Singh, Administration of Torture ; The Torture Papers: The Road to Abu Ghraib, edited by Karen J. Greenberg and Joshua L. Dratel (Cambridge University Press, 2005).

  3. 3

    Viking, 2005; reviewed in these pages by Brian Urquhart, May 11, 2006.

  • Email
  • Single Page
  • Print