Addict (drugaddict) wrote,

Dunlavey described Feith to me as one of his main points of contact. Feith, for his part, had told m

Dunlavey described Feith to me as one of his main points of contact. Feith, for his part, had told me that he knew nothing about any specific interrogation issues until the Haynes Memo suddenly landed on his desk. But that couldn’t be right—in the memo itself Haynes had written, “I have discussed this with the Deputy, Doug Feith and General Myers.” I read the sentence aloud. Feith looked at me. His only response was to tell me that I had mispronounced his name. “It’s Fythe,” he said. “Not Faith.”

In June, the focus settled on Detainee 063, Mohammed al-Qahtani, a Saudi national who had been refused entry to the United States just before 9/11 and was captured a few months later in Afghanistan. Dunlavey described to me the enormous pressure he came under—from Washington, from the top—to find out what al-Qahtani knew. The message, he said, was: “Are you doing everything humanly possible to get this information?” He received a famous Rumsfeld “snowflake,” a memo designed to prod the recipient into action. “I’ve got a short fuse on this to get it up the chain,” Dunlavey told me, “I was on a timeline.” Dunlavey held eye contact for more than a comfortable moment. He said, “This guy may have been the key to the survival of the U.S.”

The interrogation of al-Qahtani relied at first on long-established F.B.I. and military techniques, procedures sanctioned by the Field Manual and based largely on building rapport. This yielded nothing. On August 8, al-Qahtani was placed in an isolation facility to separate him from the general detainee population. Pressure from Washington continued to mount. How high up did it go?, I asked Dunlavey. “It must have been all the way to the White House,” he replied.

Meanwhile, unbeknownst to Dunlavey and the others at Guantánamo, interrogation issues had arisen in other quarters. In March 2002 a man named Abu Zubaydah, a high-ranking al-Qaeda official, was captured in Pakistan. C.I.A. director George Tenet wanted to interrogate him aggressively but worried about the risk of criminal prosecution. He had to await the completion of legal opinions by the Justice Department, a task that had been entrusted by Alberto Gonzales to Jay Bybee and John Yoo. “It took until August to get clear guidance on what Agency officers could legally do,” Tenet later wrote. The “clear guidance” came on August 1, 2002, in memos written by Bybee and Yoo, with input from Addington. The first memo was addressed to Gonzales, redefining torture and abandoning the definition set by the 1984 torture convention. This was the Yoo-Bybee Memo made public by Gonzales nearly two years later, in the wake of Abu Ghraib. Nothing in the memo suggested that its use was limited to the C.I.A.; it referred broadly to “the conduct of interrogations outside of the United States.” Gonzales would later contend that this policy memo did “not reflect the policies the administration ultimately adopted,” but in fact it gave carte blanche to all the interrogation techniques later recommended by Haynes and approved by Rumsfeld. The second memo, requested by John Rizzo, a senior lawyer at the C.I.A., has never been made public. It spells out the specific techniques in detail. Dunlavey and his subordinates at Guantánamo never saw these memos and were not aware of their contents.

The lawyers in Washington were playing a double game. They wanted maximum pressure applied during interrogations, but didn’t want to be seen as the ones applying it—they wanted distance and deniability. They also wanted legal cover for themselves. A key question is whether Haynes and Rumsfeld had knowledge of the content of these memos before they approved the new interrogation techniques for al-Qahtani. If they did, then the administration’s official narrative—that the pressure for new techniques, and the legal support for them, originated on the ground at Guantánamo, from the “aggressive major general” and his staff lawyer—becomes difficult to sustain. More crucially, that knowledge is a link in the causal chain that connects the keyboards of Feith and Yoo to the interrogations of Guantánamo.

When did Haynes learn that the Justice Department had signed off on aggressive interrogation? All indications are that well before Haynes wrote his memo he knew what the Justice Department had advised the C.I.A. on interrogations and believed that he had legal cover to do what he wanted. Everyone in the upper echelons of the chain of decision-making that I spoke with, including Feith, General Myers, and General Tom Hill (the commander of SouthCom), confirmed to me that they believed at the time that Haynes had consulted Justice Department lawyers. Moreover, Haynes was a close friend of Bybee’s. “Jim was tied at the hip with Jay Bybee,” Thomas Romig, the army’s former judge advocate general, told me. “He would quote him the whole time.” Later, when asked during Senate hearings about his knowledge of the Yoo-Bybee Memo, Haynes would variously testify that he had not sought the memo, had not shaped its content, and did not possess a copy of it—but he carefully refrained from saying that he was unaware of its contents. Haynes, with whom I met on two occasions, will not speak on the record about this subject.

The Glassy-Eyed Men

As the first anniversary of 9/11 approached, Joint Task Force 170 was on notice to deliver results. But the task force was not the only actor at Guantánamo. The C.I.A. had people there looking for recruits among the detainees. The Defense Intelligence Agency (D.I.A.) was interrogating detainees through its humint (human intelligence) Augmentation Teams. The F.B.I. was carrying out its own traditional non-aggressive interrogations.

The source of the various new techniques has been the stuff of speculation. In the administration’s official account, as noted, everything trickled up from the ground at Guantánamo. When I suggested to Mike Dunlavey that the administration’s trickle-up line was counter-intuitive, he didn’t disabuse me. “It’s possible,” he said, in a tone at once mischievous and unforthcoming, “that someone was sent to my task force and came up with these great ideas.” One F.B.I. special agent remembers an occasion, before any new techniques had been officially sanctioned, when military interrogators set out to question al-Qahtani for 24 hours straight—employing a variation on a method that would later appear in the Haynes Memo. When the agent objected, he said he was told that the plan had been approved by “the secretary,” meaning Rumsfeld.

Diane Beaver, Dunlavey’s staff judge advocate, was the lawyer who would later be asked to sign off on the new interrogation techniques. When the administration made public the list, it was Beaver’s legal advice the administration invoked. Diane Beaver gave me the fullest account of the process by which the new interrogation techniques emerged. In our lengthy conversations, which began in the autumn of 2006, she seemed coiled up—mistreated, hung out to dry. Before becoming a military lawyer Beaver had been a military police officer; once, while stationed in Germany, she had visited the courtroom where the Nuremberg trials took place. She was working as a lawyer for the Pentagon when the hijacked airplane hit on 9/11, and decided to remain in the army to help as she could. That decision landed her in Guantánamo.

It was clear to me that Beaver believed Washington was directly involved in the interrogations. Her account confirmed what Dunlavey had intimated, and what others have told me—that Washington’s views were being fed into the process by people physically present at Guantánamo. D.I.A. personnel were among them. Later allegations would suggest a role for three C.I.A. psychologists.

During September a series of brainstorming meetings were held at Guantánamo to discuss new techniques. Some of the meetings were led by Beaver. “I kept minutes. I got everyone together. I invited. I facilitated,” she told me. The sessions included representatives of the D.I.A. and the C.I.A. Ideas came from all over. Some derived from personal training experiences, including a military program known as sere (Survival, Evasion, Resistance, and Escape), designed to help soldiers persevere in the event of capture. Had sere been, in effect, reverse-engineered to provide some of the 18 techniques? Both Dunlavey and Beaver told me that sere provided inspiration, contradicting the administration’s denials that it had. Indeed, several Guantánamo personnel, including a psychologist and a psychiatrist, traveled to Fort Bragg, sere’s home, for a briefing.

Ideas arose from other sources. The first year of Fox TV’s dramatic series 24 came to a conclusion in spring 2002, and the second year of the series began that fall. An inescapable message of the program is that torture works. “We saw it on cable,” Beaver recalled. “People had already seen the first series. It was hugely popular.” Jack Bauer had many friends at Guantánamo, Beaver added. “He gave people lots of ideas.”

The brainstorming meetings inspired animated discussion. “Who has the glassy eyes?,” Beaver asked herself as she surveyed the men around the room, 30 or more of them. She was invariably the only woman present—as she saw it, keeping control of the boys. The younger men would get particularly agitated, excited even. “You could almost see their dicks getting hard as they got new ideas,” Beaver recalled, a wan smile flickering on her face. “And I said to myself, You know what? I don’t have a dick to get hard—I can stay detached.”

Not everyone at Guantánamo was enthusiastic. The F.B.I. and the Naval Criminal Investigative Service refused to be associated with aggressive interrogation. They opposed the techniques. One of the N.C.I.S. psychologists, Mike Gelles, knew about the brainstorming sessions but stayed away. He was dismissive of the administration’s contention that the techniques trickled up on their own from Guantánamo. “That’s not accurate,” he said flatly. “This was not done by a bunch of people down in Gitmo—no way.”

That view is buttressed by a key event that has received virtually no attention. On September 25, as the process of elaborating new interrogation techniques reached a critical point, a delegation of the administration’s most senior lawyers arrived at Guantánamo. The group included the president’s lawyer, Alberto Gonzales, who had by then received the Yoo-Bybee Memo; Vice President Cheney’s lawyer, David Addington, who had contributed to the writing of that memo; the C.I.A.’s John Rizzo, who had asked for a Justice Department sign-off on individual techniques, including waterboarding, and received the second (and still secret) Yoo-Bybee Memo; and Jim Haynes, Rumsfeld’s counsel. They were all well aware of al-Qahtani. “They wanted to know what we were doing to get to this guy,” Dunlavey told me, “and Addington was interested in how we were managing it.” I asked what they had to say. “They brought ideas with them which had been given from sources in D.C.,” Dunlavey said. “They came down to observe and talk.” Throughout this whole period, Dunlavey went on, Rumsfeld was “directly and regularly involved.”

Beaver confirmed the account of the visit. Addington talked a great deal, and it was obvious to her that he was a “very powerful man” and “definitely the guy in charge,” with a booming voice and confident style. Gonzales was quiet. Haynes, a friend and protégé of Addington’s, seemed especially interested in the military commissions, which were to decide the fate of individual detainees. They met with the intelligence people and talked about new interrogation methods. They also witnessed some interrogations. Beaver spent time with the group. Talking about the episode even long afterward made her visibly anxious. Her hand tapped and she moved restlessly in her chair. She recalled the message they had received from the visitors: Do “whatever needed to be done.” That was a green light from the very top—the lawyers for Bush, Cheney, Rumsfeld, and the C.I.A. The administration’s version of events—that it became involved in the Guantánamo interrogations only in November, after receiving a list of techniques out of the blue from the “aggressive major general”—was demonstrably false.

“A Dunk in the Water”

Two weeks after this unpublicized visit the process of compiling the list of new techniques was completed. The list was set out in a three-page memorandum from Lieutenant Colonel Jerald Phifer, dated October 11 and addressed to Dunlavey.

The Phifer Memo identified the problem: “current guidelines” prohibited the use of “physical or mental torture, threats, insults, or exposure to inhumane treatment as a means of or aid to interrogation.” The prohibition dated back to 1863 and a general order issued by Abraham Lincoln.

The list of new interrogation techniques turned its back on this tradition. The 18 techniques were divided into three categories and came with only rudimentary guidance. No limits were placed on how many methods could be used at once, or for how many days in succession. The detainee was to be provided with a chair. The environment should be generally comfortable. If the detainee was uncooperative, you went to Category I. This comprised two techniques, yelling and deception.

If Category I produced no results, then the military interrogator could move to Category II. Category II included 12 techniques aimed at humiliation and sensory deprivation: for instance, the use of stress positions, such as standing; isolation for up to 30 days; deprivation of light and sound; 20-hour interrogations; removal of religious items; removal of clothing; forcible grooming, such as the shaving of facial hair; and the use of individual phobias, such as the fear of dogs, to induce stress.

detainees in a holding area at Guantanamo's Camp X-Ray

January 2002: detainees in a holding area at Guantánamo’s Camp X-Ray, the original detention facility, where the first military interrogations took place. By Ron Sachs/CNP/Corbis.

Finally came Category III, for the most exceptionally resistant. Category III included four techniques: the use of “mild, non-injurious physical contact,” such as grabbing, poking, and light pushing; the use of scenarios designed to convince the detainee that death or severely painful consequences were imminent for him or his family; exposure to cold weather or water; and waterboarding. This last technique, which powerfully mimics the experience of drowning, was later described by Vice President Cheney as a “dunk in the water.”

By the time the memo was completed al-Qahtani had already been separated from all other detainees for 64 days, in a cell that was “always flooded with light.” An F.B.I. agent described his condition the following month, just as the new interrogation techniques were first being directed against him: the detainee, a 2004 memo stated, “was talking to non-existent people, reporting hearing voices, [and] crouching in a corner of the cell covered with a sheet for hours on end.”

Ends and Means

Diane Beaver was insistent that the decision to implement new interrogation techniques had to be properly written up and that it needed a paper trail leading to authorization from the top, not from “the dirt on the ground,” as she self-deprecatingly described herself. “I just wasn’t comfortable giving oral advice,” she explained, as she had been requested to do. “I wanted to get something in writing. That was my game plan. I had four days. Dunlavey gave me just four days.” She says she believed that senior lawyers in Washington would review her written advice and override it if necessary. It never occurred to her that on so important an issue she would be the one to provide the legal assessment on which the entire matter would appear to rest—that her word would be the last word. As far as she was concerned, getting the proposal “up the command” was victory enough. She didn’t know that people much higher up had already made their decisions, had the security of secret legal cover from the Justice Department, and, although confident of their own legal protection, had no intention of soiling their hands by weighing in on the unpleasant details of interrogation.

Marooned in Guantánamo, Beaver had limited access to books and other documents, although there was Internet access to certain legal materials. She tried getting help from more experienced lawyers—at SouthCom, the Joint Chiefs, the D.I.A., the jag School—but to no avail.

In the end she worked on her own, completing the task just before the Columbus Day weekend. Her memo was entitled “Legal Review of Aggressive Interrogation Techniques.” The key fact was that none of the detainees were protected by Geneva, owing to Douglas Feith’s handiwork and the president’s decision in February. She also concluded that the torture convention and other international laws did not apply, conclusions that a person more fully schooled in the relevant law might well have questioned: “It was not my job to second-guess the president,” she told me. Beaver ignored customary international law altogether. All that was left was American law, which is what she turned to.

Given the circumstances in which she found herself, the memo has a certain desperate, heroic quality. She proceeded methodically through the 18 techniques, testing each against the standards set by U.S. law, including the Eighth Amendment to the Constitution (which prohibits “cruel and unusual punishment”), the federal torture statute, and the Uniform Code of Military Justice. The common theme was that the techniques were fine “so long as the force used could plausibly have been thought necessary in a particular situation to achieve a legitimate government objective, and it was applied in a good faith effort and not maliciously or sadistically for the very purpose of causing harm.” That is to say, the techniques are legal if the motivation is pure. National security justifies anything.

Beaver did enter some important caveats. The interrogators had to be properly trained. Since the law required “examination of all facts under a totality of circumstances test,” all proposed interrogations involving Category II and III methods had to “undergo a legal, medical, behavioral science, and intelligence review prior to their commencement.” This suggested concerns about these new techniques, including whether they would be effective. But in the end she concluded, I “agree that the proposed strategies do not violate applicable federal law.” The word “agree” stands out—she seems to be confirming a policy decision that she knows has already been made.

Time and distance do not improve the quality of the advice. I thought it was awful when I first read it, and awful when I reread it. Nevertheless, I was now aware of the circumstances in which Beaver had been asked to provide her advice. Refusal would have caused difficulty. It was also reasonable to expect a more senior review of her draft. Beaver struck me as honest, loyal, and decent. Personally, she was prepared to take a hard line on many detainees. She once described them to me as “psychopaths. Skinny, runty, dangerous, lying psychopaths.” But there was a basic integrity to her approach. She could not have anticipated that there would be no other piece of written legal advice bearing on the Guantánamo interrogations. She could not have anticipated that she would be made the scapegoat.

Once, after returning to a job at the Pentagon, Beaver passed David Addington in a hallway—the first time she had seen him since his visit to Guantánamo. He recognized her immediately, smiled, and said, “Great minds think alike.”

The “voco

On October 11, Dunlavey sent his request for approval of new techniques, together with Diane Beaver’s legal memo, to General Tom Hill, the commander of SouthCom. Two weeks later, on October 25, Hill forwarded everything to General Myers, the chairman of the Joint Chiefs, in Washington. Hill’s cover letter contains a sentence—“Our respective staffs, the Office of the Secretary of Defense, and Joint Task Force 170 have been trying to identify counter-resistant techniques that we can lawfully employ”—which again makes it clear that the list of techniques was no surprise to Rumsfeld’s office, whatever its later claims. Hill also expressed serious reservations. He wanted Pentagon lawyers to weigh in, and he explicitly requested that “Department of Justice lawyers review the third category of techniques.”

At the level of the Joint Chiefs the memo should have been subject to a detailed review, including close legal scrutiny by Myers’s own counsel, Jane Dalton, but that never happened. It seems that Jim Haynes short-circuited the approval process. Alberto Mora, the general counsel of the navy, says he remembers Dalton telling him, “Jim pulled this away. We never had a chance to complete the assessment.”

When we spoke, Myers confessed to being troubled that normal procedures had been circumvented. He held the Haynes Memo in his hands, looking carefully at the sheet of paper as if seeing it clearly for the first time. He pointed: “You don’t see my initials on this.” Normally he would have initialed a memo to indicate approval, but there was no confirmation that Myers had seen the memo or formally signed off on it before it went to Rumsfeld. “You just see I’ve ‘discussed’ it,” he said, noting a sentence to that effect in the memo itself. “This was not the way this should have come about.” Thinking back, he recalled the “intrigue” that was going on, intrigue “that I wasn’t aware of, and Jane wasn’t aware of, that was probably occurring between Jim Haynes, White House general counsel, and Justice.”

Further confirmation that the Haynes Memo got special handling comes from a former Pentagon official, who told me that Lieutenant General Bantz Craddock, Rumsfeld’s senior military assistant, noticed that it was missing a buck slip, an essential component that shows a document’s circulation path, and which everyone was supposed to initial. The Haynes Memo had no “legal chop,” or signature, from the general counsel’s office. It went back to Haynes, who later signed off with a note that said simply, “Good to go.”

Events moved fast as the process was cut short. On November 4, Dunlavey was replaced as commander at Guantánamo by Major General Geoffrey Miller. On November 12 a detailed interrogation plan was approved for al-Qahtani, based on the new interrogation techniques. The plan was sent to Rumsfeld for his personal approval, General Hill told me.

Ten days later an alternative plan, prepared by Mike Gelles and others at the N.C.I.S. and elsewhere, using traditional non-aggressive techniques, was rejected. By then the F.B.I. had communicated its concerns to Haynes’s office about developments at Guantánamo. On November 23, well before Rumsfeld gave formal written approval to the Haynes Memo, General Miller received a “voco“—a vocal command—authorizing an immediate start to the aggressive interrogation of al-Qahtani. No one I spoke with, including Beaver, Hill, and Myers, could recall who had initiated the voco, but an army investigation would state that it was likely Rumsfeld, and he would not have acted without Haynes’s endorsement.

Al-Qahtani’s interrogation log for Saturday, November 23, registers the immediate consequence of the decision to move ahead. “The detainee arrives at the interrogation booth His hood is removed and he is bolted to the floor.”


Four days after the voco, Haynes formally signed off on his memo. He recommended, as a matter of policy, approval of 15 of the 18 techniques. Of the four techniques listed in Category III, however, Haynes proposed blanket approval of just one: mild non-injurious physical contact. He would later tell the Senate that he had “recommended against the proposed use of a wet towel”—that is, against waterboarding—but to the contrary, in his memo he stated that “all Category III techniques may be legally available.” Rumsfeld placed his name next to the word “Approved” and wrote the jocular comment that may well expose him to difficulties in the witness stand at some future time.

As the memo was being approved, the F.B.I. communicated serious concerns directly to Haynes’s office. Then, on December 17, Dave Brant, of the N.C.I.S., paid a surprise visit to Alberto Mora, the general counsel of the navy. Brant told him that N.C.I.S. agents had information that abusive actions at Guantánamo had been authorized at a “high level” in Washington. The following day Mora met again with Brant. Mike Gelles joined them and told Mora that the interrogators were under extraordinary pressure to achieve results. Gelles described the phenomenon of “force drift,” where interrogators using coercion come to believe that if some force is good, then more must be better. As recounted in his official “Memorandum for Inspector General, Department of the Navy,” Mora visited Steve Morello, the army’s general counsel, and Tom Taylor, his deputy, who showed him a copy of the Haynes Memo with its attachments. The memorandum describes them as demonstrating “great concern.” In the course of a long interview Mora recalled Morello “with a furtive air” saying, “Look at this. Don’t tell anyone where you got it.” Mora was horrified by what he read. “I was astounded that the secretary of defense would get within 100 miles of this issue,” he said. (Notwithstanding the report to the inspector general, Morello denies showing Mora a copy of the Haynes Memo.)

On December 20, Mora met with Haynes, who listened attentively and said he would consider Mora’s concerns. Mora went away on vacation, expecting everything to be sorted out. It wasn’t: Brant soon called to say the detainee mistreatment hadn’t stopped. On January 9, 2003, Mora met Haynes for a second time, expressing surprise that the techniques hadn’t been stopped. Haynes said little in response, and Mora felt he had made no headway. The following day, however, Haynes called to say that he had briefed Rumsfeld and that changes were in the offing. But over the next several days no news came.

On the morning of Wednesday, January 15, Mora awoke determined to act. He would put his concerns in writing in a draft memorandum for Haynes and Dalton. He made three simple points. One: the majority of the Category II and III techniques violated domestic and international law and constituted, at a minimum, cruel and unusual treatment and, at worst, torture. Two: the legal analysis by Diane Beaver had to be rejected. Three: he “strongly non-concurred” with these interrogation techniques. He delivered the draft memo to Haynes’s office. Two hours later, at about five p.m. on January 15, Haynes called Mora. “I’m pleased to tell you the secretary has rescinded the authorization,” he said.

The abusive interrogation of al-Qahtani lasted a total of 54 days. It ended not on January 12, as the press was told in June 2004, but three days later, on January 15. In those final three days, knowing that the anything-goes legal regime might disappear at any moment, the interrogators made one last desperate push to get something useful out of al-Qahtani. They never did. By the end of the interrogation al-Qahtani, according to an army investigator, had “black coals for eyes.”

The Great Migration

Mike Gelles, of the N.C.I.S., had shared with me his fear that the al-Qahtani techniques would not simply fade into history—that they would turn out to have been horribly contagious. This “migration” theory was controversial, because it potentially extended the responsibility of those who authorized the Guantánamo techniques to abusive practices elsewhere. John Yoo has described the migration theory as “an exercise in hyperbole and partisan smear.”

But is it? In August 2003, Major General Miller traveled from Guantánamo to Baghdad, accompanied by Diane Beaver. They visited Abu Ghraib and found shocking conditions of near lawlessness. Miller made recommendations to Lieutenant General Ricardo Sanchez, the commander of coalition forces in Iraq. On September 14, General Sanchez authorized an array of new interrogation techniques. These were vetted by his staff judge advocate, who later told the Senate Armed Services Committee that operating procedures and policies “in use in Guantánamo Bay” had been taken into account. Despite the fact that Geneva applied in Iraq, General Sanchez authorized several techniques that were not sanctioned by the Field Manual—but were listed in the Haynes Memo. The abuses for which Abu Ghraib became infamous began one month later.

Three different official investigations in the space of three years have confirmed the migration theory. The August 2006 report of the Pentagon’s inspector general concluded unequivocally that techniques from Guantánamo had indeed found their way to Iraq. An investigation overseen by former secretary of defense James R. Schlesinger determined that “augmented techniques for Guantanamo migrated to Afghanistan and Iraq where they were neither limited nor safeguarded.”

Jim Haynes and Donald Rumsfeld may have reversed themselves about al-Qahtani in January 2003, but the death blow to the administration’s outlook did not occur for three more years. It came on June 29, 2006, with the U.S. Supreme Court’s ruling in Hamdan v. Rumsfeld, holding that Guantánamo detainees were entitled to the protections provided under Geneva’s Common Article 3. The Court invoked the legal precedents that had been sidestepped by Douglas Feith and John Yoo, and laid bare the blatant illegality of al-Qahtani’s interrogation. A colleague having lunch with Haynes that day described him as looking “shocked” when the news arrived, adding, “He just went pale.” Justice Anthony Kennedy, joining the majority, pointedly observed that “violations of Common Article 3 are considered ‘war crimes.’ ”

Jim Haynes appears to remain a die-hard supporter of aggressive interrogation. Shortly after the Supreme Court decision, when he appeared before the Senate Judiciary Committee, Senator Patrick Leahy reminded him that in 2003 Haynes had said there was “no way” that Geneva could apply to the Afghan conflict and the war on terror. “Do you now accept that you were mistaken in your legal and policy determinations?,” Leahy asked. Haynes would say only that he was bound by the Supreme Court’s decision.

As the consequences of Hamdan sank in, the instinct for self-preservation asserted itself. The lawyers got busy. Within four months President Bush signed into law the Military Commissions Act. This created a new legal defense against lawsuits for misconduct arising from the “detention and interrogation of aliens” between September 11, 2001, and December 30, 2005. That covered the interrogation of al-Qahtani, and no doubt much else. Signing the bill on October 17, 2006, President Bush explained that it provided “legal protections that ensure our military and intelligence personnel will not have to fear lawsuits filed by terrorists simply for doing their jobs.”

In a word, the interrogators and their superiors were granted immunity from prosecution. Some of the lawyers who contributed to this legislation were immunizing themselves. The hitch, and it is a big one, is that the immunity is good only within the borders of the United States.

A Tap on the Shoulder

The table in the conference room held five stacks of files and papers, neatly arranged and yellow and crisp with age. Behind them sat an elderly gentleman named Ludwig Altstötter, rosy-cheeked and cherubic. Ludwig is the son of Josef Altstötter, the lead defendant in the 1947 case United States of America v. Josef Altstoetter et al., which was tried in Germany before a U.S. military tribunal. The case is famous because it appears to be the only one in which lawyers have ever been charged and convicted for committing international crimes through the performance of their legal functions. It served as the inspiration for the Oscar-winning 1961 movie Judgment at Nuremberg, whose themes are alluded to in Marcel Ophuls’s classic 1976 film on wartime atrocities, The Memory of Justice, which should be required viewing but has been lost to a broader audience. Nuremberg was, in fact, where Ludwig and I were meeting.

The Altstötter case had been prosecuted by the Allies to establish the principle that lawyers and judges in the Nazi regime bore a particular responsibility for the regime’s crimes. Sixteen lawyers appeared as defendants. The scale of the Nazi atrocities makes any factual comparison with Guantánamo absurd, a point made to me by Douglas Feith, and with which I agree. But I wasn’t interested in drawing a facile comparison between historical episodes. I wanted to know more about the underlying principle.

Josef Altstötter had the misfortune, because of his name, to be the first defendant listed among the 16. He was not the most important or the worst, although he was one of the 10 who were in fact convicted (4 were acquitted, one committed suicide, and there was one mistrial). He was a well-regarded member of society and a high-ranking lawyer. In 1943 he joined the Reich Ministry of Justice in Berlin, where he served as a Ministerialdirektor, the chief of the civil-law-and-procedure division. He became a member of the SS in 1937. The U.S. Military Tribunal found him guilty of membership in that criminal organization—with knowledge of its criminal acts—and sentenced him to five years in prison, which he served in full. He returned to legal practice in Nuremberg and died in 1979. Ludwig Altstötter had all the relevant documents, and he generously invited me to go over them with him in Nuremberg.

I took Ludwig to the most striking passage in the tribunal’s judgment. “He gave his name as a soldier and a jurist of note and so helped to cloak the shameful deeds of that organisation from the eyes of the German people.” The tribunal convicted Altstötter largely on the basis of two letters. Ludwig went to the piles on the table and pulled out fading copies of the originals. The first, dated May 3, 1944, was from the chief of the SS intelligence service to Ludwig’s father, asking him to intervene with the regional court of Vienna and stop it from ordering the transfer of Jews from the concentration camp at Theresienstadt back to Vienna to appear as witnesses in court hearings. The second letter was Altstötter’s response, a month later, to the president of the court in Vienna. “For security reasons,” he wrote, “these requests cannot be granted.” The U.S. Military Tribunal proceeded on the basis that Altstötter would have known what the concentration camps were for.

The words “security reasons” reminded me of remarks by Jim Haynes at the press conference with Gonzales: “Military necessity can sometimes allow … warfare to be conducted in ways that might infringe on the otherwise applicable articles of the Convention.” Haynes provided no legal authority for that proposition, and none exists. The minimum rights of detainees guaranteed by Geneva and the torture convention can never be overridden by claims of security or other military necessity. That is their whole purpose.

Mohammed al-Qahtani is among the first six detainees scheduled to go on trial for complicity in the 9/11 attacks; the Bush administration has announced that it will seek the death penalty. Last month, President Bush vetoed a bill that would have outlawed the use by the C.I.A. of the techniques set out in the Haynes Memo and used on al-Qahtani. Whatever he may have done, Mohammed al-Qahtani was entitled to the protections afforded by international law, including Geneva and the torture convention. His interrogation violated those conventions. There can be no doubt that he was treated cruelly and degraded, that the standards of Common Article 3 were violated, and that his treatment amounts to a war crime. If he suffered the degree of severe mental distress prohibited by the torture convention, then his treatment crosses the line into outright torture. These acts resulted from a policy decision made right at the top, not simply from ground-level requests in Guantánamo, and they were supported by legal advice from the president’s own circle.

Those responsible for the interrogation of Detainee 063 face a real risk of investigation if they set foot outside the United States. Article 4 of the torture convention criminalizes “complicity” or “participation” in torture, and the same principle governs violations of Common Article 3.

It would be wrong to consider the prospect of legal jeopardy unlikely. I remember sitting in the House of Lords during the landmark Pinochet case, back in 1999—in which a prosecutor was seeking the extradition to Spain of the former Chilean head of state for torture and other international crimes—and being told by one of his key advisers that they had never expected the torture convention to lead to the former president of Chile’s loss of legal immunity. In my efforts to get to the heart of this story, and its possible consequences, I visited a judge and a prosecutor in a major European city, and guided them through all the materials pertaining to the Guantánamo case. The judge and prosecutor were particularly struck by the immunity from prosecution provided by the Military Commissions Act. “That is very stupid,” said the prosecutor, explaining that it would make it much easier for investigators outside the United States to argue that possible war crimes would never be addressed by the justice system in the home country—one of the trip wires enabling foreign courts to intervene. For some of those involved in the Guantánamo decisions, prudence may well dictate a more cautious approach to international travel. And for some the future may hold a tap on the shoulder.

“It’s a matter of time,” the judge observed. “These things take time.” As I gathered my papers, he looked up and said, “And then something unexpected happens, when one of these lawyers travels to the wrong place.”

Philippe Sands is an international lawyer at the firm Matrix Chambers and a professor at University College London

  • Post a new comment


    default userpic

    Your reply will be screened

    Your IP address will be recorded 

    When you submit the form an invisible reCAPTCHA check will be performed.
    You must follow the Privacy Policy and Google Terms of use.