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The Complicit General

On April 24, 1863, President Lincoln signed his General Order No. 100, written by Columbia University professor Francis Lieber, to decree that “military necessity does not admit of cruelty.” The United States military formally respected that rule for nearly 140 years—until, on December 2, 2002, Secretary of Defense Donald Rumsfeld signed a memorandum on “Counter-Resistance Techniques” prepared for him by his general counsel, William J. Haynes II.

The Rumsfeld memo authorized the military commander in charge of Guantánamo “to employ, in his discretion,” special “counter-resistance” techniques “during the interrogation of detainees at Guantánamo Bay.” The memo purported to be a response to requests from military officers in charge at Guantánamo, who in October 2002 complained to senior Pentagon officials that “the current guidelines for interrogation procedures at GTMO limit the ability of interrogators to counter advanced resistance.” In the memo, Haynes states that he has “discussed this with the Deputy [Paul Wolfowitz], Doug Feith and General Myers” and that he recommends authorizing most of a proposed three-step interrogation plan. In this sequence, relatively benign techniques (“Category I”) such as yelling and deception are supplanted by increasingly harsh ones—“Category II” and “Category III”—such as prolonged stress positions, deprivation of light and sound, hooding, forced grooming, removal of clothing, and manipulation of “individual phobias (such as fear of dogs) to induce stress.” The memo also concluded that, beyond these fifteen, three additional Category III techniques, including waterboarding, “may be legally available,” although it stated that “as a matter of policy, a blanket approval” of those techniques “is not warranted at this time.”

In fact, all fifteen techniques approved by Rumsfeld violated the US Army Field Manual rules governing the conduct of military interrogations, as well as the Geneva Conventions and the Uniform Code of Military Justice. But they were used over a period of fifty-four days on Mohammed al-Qahtani, a Guantánamo detainee who was alleged to have been trying to enter the US in August 2001 as the twentieth September 11 hijacker.

The decision to explicitly approve the use of cruel measures by military interrogators, for the first time in more than a century, was taken during the time when General Richard Myers was the chairman of the Joint Chiefs of Staff, from October 1, 2001, until 2005; as the memo states, Haynes “discussed” the decision with Wolfowitz, Myers, and Feith, with Haynes further noting that “I believe all join in my recommendation” for approving these fifteen techniques. One would have expected Myers to address in his memoir this important historical matter in which he was involved. That he has chosen not to do so is a striking feature of his account of his four years as the most senior person in a US military uniform. It undermines the book’s authority.

With regard to the interrogation of detainees after September 11, it is well established that the path to torture was based on three key decisions. First, on February 7, 2002, President Bush decided that none of the detainees held at Guantánamo would have any legal rights under the Geneva Conventions. Second, starting in July 2002 the administration decided to authorize the use of waterboarding and other “enhanced interrogation techniques” against certain detainees held by the CIA, and obtained legal approval from the Department of Justice, in the form of two now notorious memos signed by Jay Bybee and largely written by John Yoo, with input from Dick Cheney’s legal counsel, David Addington.1 Third, on December 2, 2002, came Secretary Rumsfeld’s memo approving the use of fifteen techniques on prisoners held by the military at Guantánamo, causing the military to adopt some of the interrogation practices used by the CIA. Each decision was significant. The cumulative effect was devastating, opening the path to the abuses at Abu Ghraib and elsewhere.

In his memoir, General Myers addresses only the first decision, on the applicability of the Geneva Conventions, even though he had some knowledge about the second—the Justice Department’s approval of coercive interrogation techniques—and was directly involved in the third, Rumsfeld’s approval of the fifteen techniques at Guantánamo. Although he discusses the Geneva decision at some length, his treatment of it is, to be generous, less than complete. Despite much rhetoric about treating detainees according to the principles of the Geneva Conventions, the Bush administration made it clear it wanted to wage its Global War on Terror in a manner that was unconstrained by international agreements; with respect to the legal rights available to prisoners, it had decided that Geneva did not give them any. Myers writes that he supported the Geneva Conventions, arguing that they should apply to the Taliban although they should not get prisoner of war (POW) status. But he also held that “the Geneva Conventions did not apply to al-Qaida.” According to Myers this view was shared “by most everybody involved in the discussions.”

In fact, the Justice Department decided that the Geneva Conventions did not apply either to the Taliban or to al-Qaeda, and it is not true that either Myers’s view or that of the Justice Department was shared by most everybody. Colin Powell’s State Department, for example, expressed a contrary opinion.2 Nor were the views of General Myers and the Justice Department shared by senior military lawyers with knowledge and experience of the Geneva accords. These lawyers were cut out of the decision-making process—a fact on which Myers is silent. The view that Geneva rights did not apply was later rejected by the majority of justices on the Supreme Court: in June 2006 they ruled that all detainees at Guantánamo—Taliban, al-Qaeda, and everyone else—had the minimum rights set forth in Common Article 3 of the Geneva Conventions. It was this decision, unmentioned by General Myers, that caused the collapse of the Bush administration’s policies on the treatment of detainees and opened the way to potential criminal liability for abusive interrogations.

Against this background it is surprising that the words “Common Article 3” do not appear anywhere in Myers’s book. Common Article 3 makes it clear that there are no legal black holes: it establishes a rule of general application for prisoners captured in an armed military conflict to the effect that no detainee (whether captured in uniform or not) can be treated cruelly or tortured or subjected to outrages against human dignity, in any circumstances.3 Whether the provision was binding as a treaty, or reflected standards of customary law, is of no great practical consequence. The fact is that General Myers’s principled position on the Geneva Conventions was an abject failure. The President’s decision on Geneva did not reflect General Myers’s desires and acted as a green light for abuse. Seven years later, General Myers seems completely oblivious to this. He describes a White House meeting in which he told Bush that while others present had lawyers to support them, “I don’t have a lawyer with me. I don’t think this is a legal issue.” It was, he said, “principally a moral and a military question.” But if Myers had solicited, and relied on, the advice of the military lawyers, much of the military’s involvement in abusive interrogations might have been avoided.

Myers seems equally oblivious to the devastating consequences of his failed efforts. Once the Geneva Conventions were held to be inapplicable, the international rules and standards for detainee treatment were stripped away, and a legal black hole was created within which abuse would flourish. This, too, you would not know from the pages of Myers’s memoir, because there is not a single reference to his direct involvement, in the autumn of 2002, in the secretary of defense’s decision to approve an unprecedented and secret list of “counter-resistance” techniques that, if applied, could amount to torture. According to Myers, his role was “to vigorously provide the best professional advice possible to our political leaders.” This he failed to do, joining others in recommending to Rumsfeld the approval of fifteen new interrogation techniques—for use not by the CIA, but by interrogators from the US military. These techniques were used on Mohammed al-Qahtani and at least one other prisoner at Guantánamo. About this advice he says not a word.

It is difficult to understand what might have caused General Myers to remain silent on this vital decision. He wrote his memoir at a time when treatment of detainees was being vigorously debated, and if he had anything to say that would put his actions in a more positive light this would have been an opportunity. Perhaps he was conscious that any views or factual recollections he might state would put others in an even more difficult situation. Or maybe he acted on legal advice. Either way, we have to assume that his silence is not accidental, but rather the result of a deliberate decision. It is not a decision that is likely to serve him well.

Myers does not mention that documents proposing the new interrogation techniques arrived on his desk in late October 2002, from General James T. Hill, the commander of US Southern Command, based in Miami. In an article published in May 2008, I described how Haynes had personally intervened to stop the review process that was initiated by then Captain, now Rear Admiral Jane Dalton, Myers’s counsel at the Joint Chiefs, after Myers had passed the documents on to her.4 During testimony before the Senate Armed Services Committee in the summer of 2008, Dalton confirmed the accuracy of my piece, but went much further, revealing that she had initiated a “broadbased legal review,” sending out General Hill’s memo to the various branches of the military.5

The responses came quickly. “All of the [four armed] services expressed concerns about the techniques that were listed in the memo,” she said. “So, the next step, then, was to proceed with a larger general and policy review, which is what I intended to do.”

That never happened: she was told to stop the review. “Exactly how you were told,” asked Senator Mark Warner of Virginia, “was it in writing, or was it verbal?” It was not in writing. “The best of my recollection as to how this occurred is that the Chairman [General Myers] called me aside and indicated to me that Mr. Haynes did not want this broadbased review to take place,” Dalton said, referring to a brief meeting with Myers. “He called me aside and said, ‘Mr. Haynes does not want this process to proceed.’”

By then serious concerns about interrogation techniques had been expressed by representatives of the four armed services, which were communicated promptly and without ambiguity. The Air Force thought some of the techniques “may constitute criminal conduct,” including “torture.” The Office of the Army Judge Advocate General thought that many of the techniques violated the provisions against torture and inhumane treatment of the International Criminal Court, warning that the Category II and Category III techniques “will not read well in either The New York Times or The Cairo Times.” The Marine Corps said the proposed plan was legally insufficient and “would expose our service members to possible prosecution.” The chief legal adviser to the DoD’s Criminal Investigation Task Force believed some techniques “may subject service members to punitive articles of the Uniform Code of Military Justice.” The Navy wanted more detailed interagency legal and policy review.6

  1. 1

    A narrative of participants and chronology of the Department of Justice Office of Legal Counsel opinions on the CIA’s Detention and Interrogation Program prepared by Senator John D. Rockefeller IV of the US Senate Intelligence Committee was declassified by Attorney General Eric Holder on April 19, 2009: intelligence.senate.gov/pdfs/olcopinion.pdf.

  2. 2

    On February 2, 2002, William H. Taft IV, the legal adviser at the Department of State, wrote to Alberto Gonzales, the White House counsel, urging the application of the Geneva Conventions to the conflict in Afghanistan:

    The President should know that a decision that the Conventions do apply is consistent with the plain language of the Conventions and the unvaried practice of the United States in introducing its forces into conflict over fifty years…. From a policy standpoint, a decision that the Conventions apply provides the best legal basis for treating the al Qaeda and Taliban detainees in the way we intend to treat them. It demonstrates that the United States bases its conduct not just on its policy preferences but on its international legal obligations.

    Reproduced in The Torture Papers: The Road to Abu Ghraib, edited by Karen J. Greenberg and Joshua L. Dratel (Cambridge University Press, 2005), p. 129.

  3. 3

    Common Article 3 is so-called because it appears in all four Geneva Conventions. In relevant part it provides:

    In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

    (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed “hors de combat” by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

    To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

    (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;…

    (c) outrages upon personal dignity, in particular humiliating and degrading treatment….

  4. 4

    Philippe Sands, “The Green Light,” Vanity Fair, May 2008.

  5. 5

    See transcript of hearings to “receive testimony on the origins of aggressive interrogation techniques: Part I of the Committee’s inquiry into the treatment of detainees in US custody,” June 17, 2008, at p. 71, http://armed-services.senate.gov/testimony.cfm?wit_id=7521 &id=3413.

  6. 6

    See “The origins of aggressive interrogation techniques: Part I of the Committee’s inquiry into the treatment of detainees in US custody, Index of Documents, Tabs 10 to 14,” at http://levin.senate.gov/newsroom/supporting/2008/Documents.SASC.061708.pdf.

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