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Bush administration’s highest-ranking lawyers argued for extreme interrogation techniques

Bush administration’s highest-ranking lawyers argued for extreme interrogation techniques

http://www.vanityfair.com/


http://www.vanityfair.com/politics/features/2008/05/guantanamo200805

The White House

The Green Light

As the first anniversary of 9/11 approached, and a prized Guantánamo detainee wouldn’t talk, the Bush administration’s highest-ranking lawyers argued for extreme interrogation techniques, circumventing international law, the Geneva Conventions, and the army’s own Field Manual. The attorneys would even fly to Guantánamo to ratchet up the pressure—then blame abuses on the military. Philippe Sands follows the torture trail, and holds out the possibility of war crimes charges.

by Phillippe Sands May 2008

Undersecretary of Defense Douglas J. Feith, vice-presidential counsel and future chief of staff David S. Addington, White House counsel and future attorney general Alberto Gonzales, President George W. Bush, and Vice President Dick Cheney

Changing the long-accepted rules on interrogation required concerted action. From left: Undersecretary of Defense Douglas J. Feith, then vice-presidential counsel David S. Addington, then White House counsel Alberto Gonzales, President George W. Bush, and Vice President Dick Cheney. Photo illustration by Chris Mueller.


The abuse, rising to the level of torture, of those captured and detained in the war on terror is a defining feature of the presidency of George W. Bush. Its military beginnings, however, lie not in Abu Ghraib, as is commonly thought, or in the “rendition” of prisoners to other countries for questioning, but in the treatment of the very first prisoners at Guantánamo. Starting in late 2002 a detainee bearing the number 063 was tortured over a period of more than seven weeks. In his story lies the answer to a crucial question: How was the decision made to let the U.S. military start using coercive interrogations at Guantánamo?

The Bush administration has always taken refuge behind a “trickle up” explanation: that is, the decision was generated by military commanders and interrogators on the ground. This explanation is false. The origins lie in actions taken at the very highest levels of the administration—by some of the most senior personal advisers to the president, the vice president, and the secretary of defense. At the heart of the matter stand several political appointees—lawyers—who, it can be argued, broke their ethical codes of conduct and took themselves into a zone of international criminality, where formal investigation is now a very real option. This is the story of how the torture at Guantánamo began, and how it spread.

“Crying. Angry. Yelled for Allah.”

One day last summer I sat in a garden in London with Dr. Abigail Seltzer, a psychiatrist who specializes in trauma victims.

She divides her time between Great Britain’s National Health Service, where she works extensively with asylum seekers and other refugees, and the Medical Foundation for the Care of Victims of Torture. It was uncharacteristically warm, and we took refuge in the shade of some birches. On a table before us were three documents. The first was a November 2002 “action memo” written by William J. (Jim) Haynes II, the general counsel of the U.S. Department of Defense, to his boss, Donald Rumsfeld; the document is sometimes referred to as the Haynes Memo. Haynes recommended that Rumsfeld give “blanket approval” to 15 out of 18 proposed techniques of aggressive interrogation. Rumsfeld duly did so, on December 2, 2002, signing his name firmly next to the word “Approved.” Under his signature he also scrawled a few words that refer to the length of time a detainee can be forced to stand during interrogation: “I stand for 8–10 hours a day. Why is standing limited to 4 hours?”

The second document on the table listed the 18 proposed techniques of interrogation, all of which went against long-standing U.S. military practice as presented in the Army Field Manual. The 15 approved techniques included certain forms of physical contact and also techniques intended to humiliate and to impose sensory deprivation. They permitted the use of stress positions, isolation, hooding, 20-hour interrogations, and nudity. Haynes and Rumsfeld explicitly did not rule out the future use of three other techniques, one of which was waterboarding, the application of a wet towel and water to induce the perception of drowning.

The third document was an internal log that detailed the interrogation at Guantánamo of a man identified only as Detainee 063, whom we now know to be Mohammed al-Qahtani, allegedly a member of the 9/11 conspiracy and the so-called 20th hijacker. According to this log, the interrogation commenced on November 23, 2002, and continued until well into January. The techniques described by the log as having been used in the interrogation of Detainee 063 include all 15 approved by Rumsfeld.

“Was the detainee abused? Was he tortured?,” I asked Seltzer. Cruelty, humiliation, and the use of torture on detainees have long been prohibited by international law, including the Geneva Conventions and their Common Article 3. This total ban was reinforced in 1984 with the adoption of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which criminalizes torture and complicity in torture.

A careful and fastidious practitioner, Seltzer declined to give a straight yes or no answer. In her view the definition of torture is essentially a legal matter, which will turn on a particular set of facts. She explained that there is no such thing as a medical definition of torture, and that a doctor must look for pathology, the abnormal functioning of the body or the mind. We reviewed the definition of torture, as set out in the 1984 Convention, which is binding on 145 countries, including the United States. Torture includes “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person.”

Seltzer had gone through the interrogation log, making notations. She used four different colors to highlight moments that struck her as noteworthy, and the grim document now looked bizarrely festive. Yellow indicated episodes of abusive treatment. Pink showed where the detainee’s rights were respected—where he was fed or given a break, or allowed to sleep. Green indicated the many instances of medical involvement, where al-Qahtani was given an enema or was hospitalized suffering from hypothermia. Finally, blue identified what Seltzer termed “expressions of distress.”

We talked about the methods of interrogation. “In terms of their effects,” she said, “I suspect that the individual techniques are less important than the fact that they were used over an extended period of time, and that several appear to be used together: in other words, the cumulative effect.” Detainee 063 was subjected to systematic sleep deprivation. He was shackled and cuffed; at times, head restraints were used. He was compelled to listen to threats to his family. The interrogation leveraged his sensitivities as a Muslim: he was shown pictures of scantily clad models, was touched by a female interrogator, was made to stand naked, and was forcibly shaved. He was denied the right to pray. A psychiatrist who witnessed the interrogation of Detainee 063 reported the use of dogs, intended to intimidate “by getting the dogs close to him and then having the dogs bark or act aggressively on command.” The temperature was changed, and 063 was subjected to extreme cold. Intravenous tubes were forced into his body, to provide nourishment when he would not eat or drink.

We went through the marked-up document slowly, pausing at each blue mark. Detainee 063’s reactions were recorded with regularity. I’ll string some of them together to convey the impression:

Detainee began to cry. Visibly shaken. Very emotional. Detainee cried. Disturbed. Detainee began to cry. Detainee bit the IV tube completely in two. Started moaning. Uncomfortable. Moaning. Began crying hard spontaneously. Crying and praying. Very agitated. Yelled. Agitated and violent. Detainee spat. Detainee proclaimed his innocence. Whining. Dizzy. Forgetting things. Angry. Upset. Yelled for Allah.

The blue highlights went on and on.

Urinated on himself. Began to cry. Asked God for forgiveness. Cried. Cried. Became violent. Began to cry. Broke down and cried. Began to pray and openly cried. Cried out to Allah several times. Trembled uncontrollably.

Was Detainee 063 subjected to severe mental pain or suffering? Torture is not a medical concept, Seltzer reminded me. “That said,” she went on, “over the period of 54 days there is enough evidence of distress to indicate that it would be very surprising indeed if it had not reached the threshold of severe mental pain.” She thought about the matter a little more and then presented it a different way: “If you put 12 clinicians in a room and asked them about this interrogation log, you might get different views about the effect and long-term consequences of these interrogation techniques. But I doubt that any one of them would claim that this individual had not suffered severe mental distress at the time of his interrogation, and possibly also severe physical distress.”

The Authorized Version

The story of the Bush administration’s descent down this path began to emerge on June 22, 2004. The administration was struggling to respond to the Abu Ghraib scandal, which had broken a couple of months earlier with the broadcast of photographs that revealed sickening abuse at the prison outside Baghdad. The big legal guns were wheeled out. Alberto Gonzales and Jim Haynes stepped into a conference room at the Eisenhower Executive Office Building, next to the White House. Gonzales was President Bush’s White House counsel and would eventually become attorney general. Haynes, as Rumsfeld’s general counsel, was the most senior lawyer in the Pentagon, a position he would retain until a month ago, when he resigned—“returning to private life,” as a press release stated. Gonzales and Haynes were joined by a third lawyer, Daniel Dell’Orto, a career official at the Pentagon. Their task was to steady the beat and make it clear that the events at Abu Ghraib were the actions of a few bad eggs and had nothing to do with the broader policies of the administration.

Haynes Memo

The famous Haynes Memo, recommending enhanced “counter-resistance” techniques, as signed and annotated with a jocular comment by Rumsfeld. Enlarge this.

Gonzales and Haynes spoke from a carefully prepared script. They released a thick folder of documents, segmented by lawyerly tabs. These documents were being made public for the first time, a clear indication of the gravity of the political crisis. Among the documents were the Haynes Memo and the list of 18 techniques that Seltzer and I would later review. The log detailing the interrogation of Detainee 063 was not released; it would be leaked to the press two years later.

For two hours Gonzales and Haynes laid out the administration’s narrative. Al-Qaeda was a different kind of enemy, deadly and shadowy. It targeted civilians and didn’t follow the Geneva Conventions or any other international rules. Nevertheless, the officials explained, the administration had acted judiciously, even as it moved away from a purely law-enforcement strategy to one that marshaled “all elements of national power.” The authorized version had four basic parts.

First, the administration had moved reasonably—with care and deliberation, and always within the limits of the law. In February 2002 the president had determined, in accordance with established legal principles, that none of the detainees at Guantánamo could rely on any of the protections granted by Geneva, even Common Article 3. This presidential order was the lead document, at Tab A. The administration’s point was this: agree with it or not, the decision on Geneva concealed no hidden agenda; rather, it simply reflected a clear-eyed reading of the actual provisions. The administration, in other words, was doing nothing more than trying to proceed by the book. The law was the law.

Relating to this was a second document, one that had been the subject of media speculation for some weeks. The authors of this document, a legal opinion dated August 1, 2002, were two lawyers in the Justice Department’s Office of Legal Counsel: Jay Bybee, who is now a federal judge, and John Yoo, who now teaches law at Berkeley. Later it would become known that they were assisted in the drafting by David Addington, then the vice president’s lawyer and now his chief of staff. The Yoo-Bybee Memo declared that physical torture occurred only when the pain was “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” and that mental torture required “suffering not just at the moment of infliction but … lasting psychological harm.” Interrogations that did not reach these thresholds—far less stringent than those set by international law—were allowed. Although findings that issue from the Office of Legal Counsel at Justice typically carry great weight, at the press conference Gonzales went out of his way to decouple the Yoo-Bybee Memo from anything that might have taken place at Guantánamo. The two lawyers had been asked, in effect, to stargaze, he said. Their memo simply explored “the limits of the legal landscape.” It included “irrelevant and unnecessary” discussion and never made it into the hands of the president or of soldiers in the field. The memo did not, said Gonzales, “reflect the policies that the administration ultimately adopted.”

Defense Secretary Donald Rumsfeld with General Richard Myers

Defense Secretary Donald Rumsfeld (with General Richard Myers) before questioning by the Senate about the Abu Ghraib abuses, May 2004. By Gary Hershorn/Reuters/Corbis.

The second element of the administration’s narrative dealt with the specific source of the new interrogation techniques. Where had the initiative come from? The administration pointed to the military commander at Guantánamo, Major General Michael E. Dunlavey. Haynes would later describe him to the Senate Judiciary Committee, during his failed confirmation hearings for a judgeship in 2006, as “an aggressive major general.” The techniques were not imposed or encouraged by Washington, which had merely reacted to a request from below. They came as a result of the identification locally of “key people” at Guantánamo, including “a guy named al-Qahtani.” This man, Detainee 063, had proved able to resist the traditional non-coercive techniques of interrogation spelled out in the Army Field Manual, and as the first anniversary of 9/11 approached, an intelligence spike pointed to the possibility of new attacks. “And so it is concluded at Guantánamo,” Dell’Orto emphasized, reconstructing the event, “that it may be time to inquire as to whether there may be more flexibility in the type of techniques we use on him.” A request was sent from Guantánamo on October 11, 2002, to the head of the U.S. Southern Command (SouthCom), General James T. Hill. Hill in turn forwarded Dunlavey’s request to General Richard Myers, the chairman of the Joint Chiefs of Staff. Ultimately, Rumsfeld approved “all but three of the requested techniques.” The official version was clear: Haynes and Rumsfeld were just processing a request coming up the chain from Guantánamo.

The third element of the administration’s account concerned the legal justification for the new interrogation techniques. This, too, the administration said, had originated in Guantánamo. It was not the result of legal positions taken by politically appointed lawyers in the upper echelons of the administration, and certainly not the Justice Department. The relevant document, also dated October 11, was in the bundle released by Gonzales, a legal memo prepared by Lieutenant Colonel Diane Beaver, the staff judge advocate at Guantánamo. That document—described pointedly by Dell’Orto as a “multi-page, single-spaced legal review”—sought to provide legal authority for all the interrogation techniques. No other legal memo was cited as bearing on aggressive interrogations. The finger of responsibility was intended to point at Diane Beaver.

The fourth and final element of the administration’s official narrative was to make clear that decisions relating to Guantánamo had no bearing on events at Abu Ghraib and elsewhere. Gonzales wanted to “set the record straight” about this. The administration’s actions were inconsistent with torture. The abuses at Abu Ghraib were unauthorized and unconnected to the administration’s policies.

Gonzales and Haynes laid out their case with considerable care. The only flaw was that every element of the argument contained untruths.

The real story, pieced together from many hours of interviews with most of the people involved in the decisions about interrogation, goes something like this: The Geneva decision was not a case of following the logic of the law but rather was designed to give effect to a prior decision to take the gloves off and allow coercive interrogation; it deliberately created a legal black hole into which the detainees were meant to fall. The new interrogation techniques did not arise spontaneously from the field but came about as a direct result of intense pressure and input from Rumsfeld’s office. The Yoo-Bybee Memo was not simply some theoretical document, an academic exercise in blue-sky hypothesizing, but rather played a crucial role in giving those at the top the confidence to put pressure on those at the bottom. And the practices employed at Guantánamo led to abuses at Abu Ghraib.

The fingerprints of the most senior lawyers in the administration were all over the design and implementation of the abusive interrogation policies. Addington, Bybee, Gonzales, Haynes, and Yoo became, in effect, a torture team of lawyers, freeing the administration from the constraints of all international rules prohibiting abuse.

Killing Geneva

In the early days of 2002, as the number of al-Qaeda and Taliban fighters captured in Afghanistan began to swell, the No. 3 official at the Pentagon was Douglas J. Feith. As undersecretary of defense for policy, he stood directly below Paul Wolfowitz and Donald Rumsfeld. Feith’s job was to provide advice across a wide range of issues, and the issues came to include advice on the Geneva Conventions and the conduct of military interrogations.

I sat down with Feith not long after he left the government. He was teaching at the school of foreign service at Georgetown University, occupying a small, eighth-floor office lined with books on international law. He greeted me with a smile, his impish face supporting a mop of graying hair that seemed somehow at odds with his 54 years. Over the course of his career Feith has elicited a range of reactions. General Tommy Franks, who led the invasion of Iraq, once called Feith “the fucking stupidest guy on the face of the earth.” Rumsfeld, in contrast, saw him as an “intellectual engine.” In manner he is the Energizer Bunny, making it hard to get a word in edgewise. After many false starts Feith provided an account of the president’s decision on Geneva, including his own contribution as one of its principal architects.

“This was something I played a major role in,” he began, in a tone of evident pride. With the war in Afghanistan under way, lawyers in Washington understood that they needed a uniform view on the constraints, if any, imposed by Geneva. Addington, Haynes, and Gonzales all objected to Geneva. Indeed, Haynes in December 2001 told the CentCom admiral in charge of detainees in Afghanistan “to ‘take the gloves off’ and ask whatever he wanted” in the questioning of John Walker Lindh. (Lindh, a young American who had become a Muslim and had recently been captured in northern Afghanistan, bore the designation Detainee 001.)

A month later, the administration was struggling to adopt a position. On January 9, John Yoo and Robert Delahunty, at the Justice Department, prepared an opinion for Haynes. They concluded that the president wasn’t bound by traditional international-law prohibitions. This encountered strong opposition from Colin Powell and his counsel, William H. Taft IV, at the State Department, as well as from the Tjags—the military lawyers in the office of the judge advocate general—who wanted to maintain a strong U.S. commitment to Geneva and the rules that were part of customary law. On January 25, Alberto Gonzales put his name to a memo to the president supporting Haynes and Rumsfeld over Powell and Taft. This memo, which is believed to have been written by Addington, presented a “new paradigm” and described Geneva’s “strict limitations on questioning of enemy prisoners” as “obsolete.” Addington was particularly distrustful of the military lawyers. “Don’t bring the Tjags into the process—they aren’t reliable,” he was once overheard to say.

Feith took up the story. He had gone to see Rumsfeld about the issue, accompanied by Myers. As they reached Rumsfeld’s office, Myers turned to Feith and said, “We have to support the Geneva Conventions If Rumsfeld doesn’t go along with this, I’m going to contradict them in front of the president.” Feith was surprised by this uncharacteristically robust statement, and by the way Myers referred to the secretary bluntly as “Rumsfeld.”

Douglas Feith had a long-standing intellectual interest in Geneva, and for many years had opposed legal protections for terrorists under international law. He referred me to an article he had written in 1985, in The National Interest, setting out his basic view. Geneva provided incentives to play by the rules; those who chose not to follow the rules, he argued, shouldn’t be allowed to rely on them, or else the whole Geneva structure would collapse. The only way to protect Geneva, in other words, was sometimes to limit its scope. To uphold Geneva’s protections, you might have to cast them aside.

But that way of thinking didn’t square with the Geneva system itself, which was based on two principles: combatants who behaved according to its standards received P.O.W. status and special protections, and everyone else received the more limited but still significant protections of Common Article 3. Feith described how, as he and Myers spoke with Rumsfeld, he jumped protectively in front of the general. He reprised his “little speech” for me. “There is no country in the world that has a larger interest in promoting respect for the Geneva Conventions as law than the United States,” he told Rumsfeld, according to his own account, “and there is no institution in the U.S. government that has a stronger interest than the Pentagon.” So Geneva had to be followed? “Obeying the Geneva Conventions is not optional,” Feith replied. “The Geneva Convention is a treaty in force. It is as much part of the supreme law of the United States as a statute.” Myers jumped in. “I agree completely with what Doug said and furthermore it is our military culture It’s not even a matter of whether it is reciprocated—it’s a matter of who we are.”

Feith was animated as he relived this moment. I remained puzzled. How had the administration gone from a commitment to Geneva, as suggested by the meeting with Rumsfeld, to the president’s declaration that none of the detainees had any rights under Geneva? It all turns on what you mean by “promoting respect” for Geneva, Feith explained. Geneva didn’t apply at all to al-Qaeda fighters, because they weren’t part of a state and therefore couldn’t claim rights under a treaty that was binding only on states. Geneva did apply to the Taliban, but by Geneva’s own terms Taliban fighters weren’t entitled to P.O.W. status, because they hadn’t worn uniforms or insignia. That would still leave the safety net provided by the rules reflected in Common Article 3— but detainees could not rely on this either, on the theory that its provisions applied only to “armed conflict not of an international character,” which the administration interpreted to mean civil war. This was new. In reaching this conclusion, the Bush administration simply abandoned all legal and customary precedent that regards Common Article 3 as a minimal bill of rights for everyone.

In the administration’s account there was no connection between the decision on Geneva and the new interrogation rules later approved by Rumsfeld for Detainee 063; its position on Geneva was dictated purely by the law itself. I asked Feith, just to be clear: Didn’t the administration’s approach mean that Geneva’s constraints on interrogation couldn’t be invoked by anyone at Guantánamo? “Oh yes, sure,” he shot back. Was that the intended result?, I asked. “Absolutely,” he replied. I asked again: Under the Geneva Conventions, no one at Guantánamo was entitled to any protection? “That’s the point,” Feith reiterated. As he saw it, either you were a detainee to whom Geneva didn’t apply or you were a detainee to whom Geneva applied but whose rights you couldn’t invoke. What was the difference for the purpose of interrogation?, I asked. Feith answered with a certain satisfaction, “It turns out, none. But that’s the point.”

That indeed was the point. The principled legal arguments were a fig leaf. The real reason for the Geneva decision, as Feith now made explicit, was the desire to interrogate these detainees with as few constraints as possible. Feith thought he’d found a clever way to do this, which on the one hand upheld Geneva as a matter of law—the speech he made to Myers and Rumsfeld—and on the other pulled the rug out from under it as a matter of reality. Feith’s argument was so clever that Myers continued to believe Geneva’s protections remained in force—he was “well and truly hoodwinked,” one seasoned observer of military affairs later told me.

Feith’s argument prevailed. On February 7, 2002, President Bush signed a memorandum that turned Guantánamo into a Geneva-free zone. As a matter of policy, the detainees would be handled humanely, but only to the extent appropriate and consistent with military necessity. “The president said ‘humane treatment,’ ” Feith told me, inflecting the term sourly, “and I thought that was O.K. Perfectly fine phrase that needs to be fleshed out, but it’s a fine phrase—‘humane treatment.’ ” The Common Article 3 restrictions on torture or “outrages upon personal dignity” were gone.

“This year I was really a player,” Feith said, thinking back on 2002 and relishing the memory. I asked him whether, in the end, he was at all concerned that the Geneva decision might have diminished America’s moral authority. He was not. “The problem with moral authority,” he said, was “people who should know better, like yourself, siding with the assholes, to put it crudely.”

“I Was on a Timeline”

As the traditional constraints on aggressive interrogation were removed, Rumsfeld wanted the right man to take charge of Joint Task Force 170, which oversaw military interrogations at Guantánamo. Two weeks after the decision on Geneva he found that man in Michael Dunlavey. Dunlavey was a judge in the Court of Common Pleas in Erie, Pennsylvania, a Vietnam veteran, and a major general in the reserves with a strong background in intelligence.

Dunlavey met one-on-one with Rumsfeld at the end of February. They both liked what they saw. When I met Dunlavey, now back at his office in Erie, he described that initial meeting: “He evaluated me. He wanted to know who I was. He was very focused on the need to get intelligence. He wanted to make sure that the moment was not lost.” Dunlavey was a strong and abrasive personality (“a tyrant,” one former jag told me), but he was also a cautious man, alert to the nuances of instruction from above. Succinctly, Dunlavey described the mission Rumsfeld had given him. “He wanted me to ‘maximize the intelligence production.’ No one ever said to me, ‘The gloves are off.’ But I didn’t need to talk about the Geneva Conventions. It was clear that they didn’t apply.” Rumsfeld told Dunlavey to report directly to him. To the suggestion that Dunlavey report to SouthCom, Dunlavey heard Rumsfeld say, “I don’t care who he is under. He works for me.”

He arrived at Guantánamo at the beginning of March. Planeloads of detainees were being delivered on a daily basis, though Dunlavey soon concluded that half of them had no intelligence value. He reported this to Rumsfeld, who referred the matter to Feith. Feith, Dunlavey said, resisted the idea of repatriating any detainees whatsoever. (Feith says he made a series of interagency proposals to repatriate detainees.)




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