Guantánamo

  Confident in his opinion, Yoo confessed doubt about the drift of the courts. Although “a district court cannot properly entertain an application for a writ of habeas corpus by an enemy alien detained at Guantánamo Bay Naval Base, Cuba,” he argued, recent Guantánamo litigation suggested that “the issue has not been definitively resolved by the courts.” Thus, Yoo cautioned Haynes, “there is some plausibility that a district court would entertain such an application.”22 Throwing caution to the wind, Haynes and his boss Defense Secretary Rumsfeld ordered prisoners brought to Guantánamo Bay early the next year.

  On April 27, 2009, Condoleezza Rice defended Bush administration detention and interrogation policy in an interview at Stanford University. Asked how the United States could continue to perceive itself as a beacon of democracy in the face of evidence of torture and indefinite detention at Guantánamo Bay and elsewhere, Rice fell back on what has become a staple trope of ex–Bush administration officials. “Unless you were there in a position of authority after September 11th,” Rice explained, “you cannot possibly imagine the dilemmas that you faced in trying to protect Americans.” While there was lots of “second-guessing now,” the only second-guessing that mattered to Rice was the hue and cry that would have ensued had thousands more Americans died “because we didn’t do everything we could to protect them. If you were there in a position of authority,” she continued, “and watched Americans jump out of 80-story buildings because these murderous tyrants went after innocent people, then you were determined to do anything you could that was legal to prevent that from happening again. And so I think people understand that.”23

  Rice may be right that the majority of Americans understand the dilemma of how best to defend the country against an unconventional enemy as she posed it.24 Former top Bush administration officials continue to insist that their decision to rewrite legal codes prohibiting torture and inhumane treatment of enemy detainees was all that stood between Americans and a second terrorist attack. The historical record suggests otherwise. Criticism of Bush administration policy has not emerged only now, as Rice suggests; nor has it emanated largely from outsiders. Rather, internal opposition to the Bush administration policies was immediate and unequivocal.25 The fact that high-ranking Bush administration officials, many of them, like Rice, new to the challenge of national security, chose to ignore the counsel of seasoned military and intelligence officials cannot make that advice go away.

  If a unanimous call to protect Americans at any cost did not drive the U.S. detention and interrogation policies at Guantánamo Bay and elsewhere, what did? There are several explanations for this debacle, all of which coalesce around a politicization of national security policy at the expense of expertise. A leading authority on the history of torture maintains that torture occurs in democracies when “a national security bureaucracy overwhelms the democratic institutions that were designed to control it.”26 In this case, the reverse seems true: the torture and abuse of prisoners in U.S. custody in the wake of 9/11 is attributable to the transfer of national security policy out of the hands of seasoned military and national security experts and into the clutches of an intimate group of political ideologues.

  Sometime in the first few months after 9/11, as the Bush administration cast about for novel interrogation techniques capable of softening up the most hardened terrorists, the telephone rang at the Joint Personnel Recovery Agency (JPRA) in Fort Belvoir, Virginia. On the line was William J. Haynes II, counsel to Secretary of Defense Donald Rumsfeld, who wanted to know what the agency tasked with training U.S. soldiers to resist enemy capture could teach Pentagon officials about inducing captives to talk. JPRA kept an archive of torture techniques used on American GIs by China, North Korea, and North Vietnam, among other autocratic states.27 “Once we understood what [Haynes] was looking for,” JPRA’s Randy Moulton told the U.S. Senate Intelligence Committee, “we provided a … list of techniques.”28

  It would take these techniques the better part of a year to reach the prison at Guantánamo Bay. Meanwhile, no few senior military officials were becoming alarmed at the tenor and direction of this discussion. “We were absolutely marginalized,” the retired rear admiral and navy judge advocate general Donald J. Guter lamented, in reference to his fellow judge advocates general. “I think it was intentional, because so many military JAGs spoke up about the rule of law.” To Guter, there could be only one explanation for why the Bush administration sought a detention facility “outside the courts”: “What they were looking for was the minimum due process that we could get away with. I felt like they knew the answer they wanted to hear.”29 Thomas Romig, Guter’s army counterpart, remembered overhearing David Addington, legal counsel to Vice President Dick Cheney, warning fellow Bush administration officials not to involve Guter and Romig and their fellow JAGs in the decision-making process; they weren’t “reliable.” The outcome, Romig remarked, was “a disaster.”30

  The detainee-laden buses that whizzed by Norman Rogers and his construction team as it celebrated the feat of throwing up 120 prison cells in just over a fortnight was greeted at Camp X-Ray by JTF 160, a team of trained professionals from the U.S. Marine Corps base at Camp Lejeune, North Carolina, expert in the management and care of … refugees. Since the migrant operations of the 1990s, SOUTHCOM kept JTF 160 at its disposal, sending it down to Guantánamo once a year for refresher training. Though unfamiliar with Camp X-Ray, JTF 160 knew Radio Range like the back of its hand. “They were comfortable with Radio Range,” Jeff Johnston explained. “They had maps and plans drawn up. They exercised annually down there, under strict review.” Charged by the Pentagon to run the prison camp at Guantánamo, “SOUTHCOM defaulted to the same old pattern: they would take the plan they had in place, adapt it to the new demands, and say a prayer. Hopefully, it would work.”31

  Running a prison camp for the alleged perpetrators of 9/11 was different from running a refugee camp. It required different techniques. It also required more men than the JTF had at its disposal at Camp Lejeune. At Fort Hood, Texas, home to the Eighty-ninth Military Police Brigade, army specialist Brandon Neely discovered on the morning of January 6, 2002, that he would be deploying to a new prison facility at Guantánamo Bay. This was to be “a detainee facility, not an EPW (or Enemy Prisoner of War) camp,” Neely remembered being told. Such a “detainee camp had never been run before”; “this would be the first time in history this had taken place since these people would not fall under the Geneva Convention.” Due to depart for Guantánamo early the next day, Neely recalled having difficulty falling asleep that night. “I just kept thinking about what we were told that day—that we were going to come face to face with some of the worst people the world had to offer, and that these were the people who had attacked and killed so many people in our country.”32

  Though Camp X-Ray would be operational for only 110 days, it remains the iconic image from the Guantánamo detainee operation.33 Neely first caught sight of it on the afternoon of January 7 as he and his fellow MPs made their way to that remote corner of the base. “We turned up … the dirt road to the tents. Off to the left you could see the sparks coming from this area where it looked like people were welding.” Navy Seabees, the construction battalions under Rogers’s command, were putting together the cells that would hold the detainees. Two days later Neely encountered the camp at close range. “It was like nothing I had ever seen before,” he testified. “The cell—or cages as I call them—were small. ‘Something like you would put a dog in,’ I thought. And on top of that, it was all outdoors. Except for a small metal roof. The whole camp was rocks. No matter where you stepped you were stepping on rocks. But, ‘Oh well,’ I thought, ‘I was not going to be staying here.’”

  On January 9, 2002, forty-eight hours before the detainees were scheduled to arrive, Neely and his fellow MPs reviewed handcuffing and leg-shackling procedures. Neely had been assigned to an escort group that would be responsible for moving the detainees around the camp. The detainees “would be wea
ring a belt with cuffs,” and the MPs would “grab the back of the belt with one hand and, with the other hand, grab their arm. Since escorting was a two-man job, one of the people escorting would force the detainee’s head down while we walked so he could not see where he was going.” Neely also underwent Immediate Response Force (IRF) training.34 IRFs consisted of a group of five men, usually heavily armed, whose assignment was to overpower recalcitrant or uncooperative detainees.35

  And that was all. Before departing Fort Hood, the MPs received no “special training for working at Guantánamo,” Neely explained, and learned little or nothing about the Geneva Conventions. Indeed, at this point the relevance of the Geneva Conventions to the operation was far from clear. On the one hand, the MPs were told that the reason their own tents were rudimentary was due to Geneva’s insistence that captors live no more than one step above their captives.36 On the other hand, the MPs were told repeatedly that Geneva did not apply to this operation. The ambiguity on Geneva was compounded by a general lack of guidance about the safe and legal treatment of detainees. With the prisoners poised to arrive, no standard operating procedures (SOPs) constrained the guards’ actions, Neely recalled; “we went out on a trial-and-error basis.”37

  The descriptions MPs got of their imminent charges made them indisposed to quibble over conventions of any kind. Like the U.S. public, Neely and his colleagues were told that the detainees had been “captured fighting the Americans in Afghanistan,” which would prove true of less than 5 percent of the detainees.38 The men due to arrive in a few days were “known terrorists” who had “helped in planning” the 9/11 attacks. “Our mission would be to guard these terrorists so the United States could get more info on attacks and possibly stop more terrorist attacks.” If the aim of Neely’s superiors was to gin up hostility among the guards, it worked. Even before the first detainee stepped off a bus at X-Ray, “a lot of us, including myself, were pissed off,” Neely reported; “many people were out to get revenge for the havoc the United States had been through in recent months by these people.” 39 In this the MPs only followed the example of their commander in chief, who in the immediate aftermath of 9/11 informed a group of advisors, “I don’t care what the international lawyer says, we are going to kick some ass.”40

  Neely’s confusion about the application of Geneva at Guantánamo emanated from on high. On the very day the first detainees arrived at the naval base, Defense Secretary Rumsfeld told reporters that the U.S. military intended “to, for the most part, treat [detainees] in a manner that is reasonably consistent with the Geneva Conventions.” Journalists pressed the secretary to explain “which parts, which rights, privileges of the Geneva Convention” the detainees would be granted. “To the extent that it’s reasonable, we will end up using roughly the Geneva standard,” Rumsfeld replied. He hesitated to say exactly where the United States would “deviate from that or where we might exceed it.” In the end, the U.S. military would “probably be on both sides of it modestly.”41

  Eight days later, Rumsfeld elevated a vague and inchoate standard of detainee treatment into official U.S. military policy. In a memo to General Richard Myers, chairman of the Joint Chiefs of Staff, Rumsfeld announced that “Combatant Commanders shall, in detaining Al Qaeda and Taliban individuals under the control of the Department of Defense, treat them humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions of 1949.”42

  The ambiguity in Secretary Rumsfeld’s orders would prove disastrous for detainees and guards alike, leaving the former defenseless and the latter vulnerable to war crimes prosecutions.43 As Rumsfeld dodged the questions of a skeptical press, other Bush administration officials finalized the administration’s policy on Geneva. Like other important legal opinions in the aftermath of 9/11, the groundbreaking document on the subject emanated from the Justice Department’s Office of Legal Counsel and the person of John Yoo. On January 9, Yoo circulated a draft memorandum among national security agencies on the “Application of Treaties and Laws to al Qaeda and Taliban Detainees.” The Pentagon had asked Yoo and his colleagues to answer “whether the laws of armed conflict apply to the conditions of detention and the procedures of trial of members of al Qaeda and the Taliban militia.” Yoo concluded that the laws of armed conflict applied neither to al Qaeda (“a non-State actor”) nor to the Taliban (rulers of a “failed state”). “Al Qaeda is merely a violent political movement or organization and not a nation-state,” he wrote; hence “it is ineligible to be a signatory to any treaty.” Further, “the novel nature of this conflict” made it doubtful “al Qaeda would be included in non-international forms of armed conflict to which some provisions of the Geneva Conventions might apply. Therefore, neither the Geneva Conventions nor the WCA [the War Crimes Act, the US law affecting Geneva] regulate the detention of al Qaeda prisoners captured during the Afghanistan conflict.”

  Nor could a “failed state” such as Afghanistan under Taliban rule trigger the Geneva Conventions, according to Yoo. The Taliban militia was no more “entitled to enemy POW status” under the Geneva Conventions “than al Qaeda itself.” Furthermore, Yoo proceeded, even if Afghanistan were technically a functioning state, “the President has the constitutional authority to suspend our treaties with Afghanistan pending the restoration of a legitimate government capable of performing Afghanistan’s treaty obligations.” Besides, evidence suggested that the Taliban was so “intertwined with al Qaeda as to be functionally indistinguishable from it.” This gave the Taliban more in common with an NGO “that used military force to pursue its religious and political ideology” than with a “functioning government.”

  Finally, Yoo addressed the question of whether the president was bound by so-called customary international law of armed conflict in his treatment of enemy detainees. Customary international law consists of broadly held, often unwritten norms and conventions—against torture, for instance. Yoo concluded that such law “does not bind or restrict the actions of the United States military, because it does not constitute federal law recognized under the Supremacy Clause of the Constitution.” And yet, though customary international law did not bind the president, he retained the “constitutional authority as Commander-in-Chief to interpret and apply the customary or common laws of war in such a way that they would extend to the conduct of members of both al Qaeda and the Taliban, and also to the conduct of the U.S. Armed Forces towards members of those groups taken as prisoners in Afghanistan.” Hitherto widely held to be binding on all parties (including U.S. presidents) at all times in all contexts, the customary international law of armed conflict became, according to Yoo, an instrument available to the U.S. president at his discretion.44

  Yoo insisted that his Geneva memo was intended to clarify the conditions of detainee confinement rather than authorize abusive interrogation techniques, but that is not how many Bush administration officials interpreted it.45 On January 11, just as the detainees arrived at Guantánamo, and as Rumsfeld parsed the fine points of detainee treatment before the press, William H. Taft IV, legal advisor to Secretary of State Colin Powell, wrote Yoo a note arguing that the memo was wrong on all scores.46 Some of Yoo’s mistakes were sophomoric. “The draft memorandum badly confuses the distinction between states and governments in the operation of treaties,” Taft wrote. Failed states did not cease to be parties to treaties. Yoo’s argument was “contrary to the official position of the United States, the United Nations and all other states that have considered the issue.” Nor was Yoo correct that the president could simply suspend U.S. obligations under Geneva—a notion both “legally flawed and procedurally impossible at this stage.” Finally, in claiming that nothing in the U.S. Constitution bound the president to abide by customary international law, Yoo ignored the very existence of international law itself.

  This last mistake exposed Yoo’s larger aim. “John,” Taft wrote, “I understand you have long been convinced that treaties and customary inter
national law have from time to time been cited inappropriately to circumscribe the President’s constitutional authority or pre-empt the Congress’s exercise of legislative power.” Similarly, Taft understood Yoo’s “desire to identify legal authority establishing the right of the United States to treat the members of the Taliban Militia in the way it thinks best.” Taft himself shared Yoo’s sentiment in both regards. Still, Taft could not endorse Yoo’s conclusion to the president or secretary of state.

  Two weeks later, David Addington, legal counsel to Vice President Cheney, would argue in a memo signed by White House counsel Alberto Gonzalez that the war on terror constituted a “new paradigm” in international relations, calling for new policies and procedures unanticipated by Geneva. In his response to Yoo, Taft anticipated this argument and flatly rejected it. “In previous conflicts,” he noted, “the United States has dealt with tens of thousands of detainees without repudiating its obligations under the Conventions. I have no doubt we can do so here, where a relative handful of persons is involved.” Cutting straight to the heart of the matter, Taft insisted that “only the utmost confidence in our legal arguments could … justify deviating from the United States’ unbroken record of compliance with the Geneva Conventions in our conduct of military operations over the past fifty years.” Yoo’s legal analysis—“actually incorrect as well as incomplete”—scarcely amounted to that. “We should talk,” Taft concluded, as if summoning an errant student to his office.47

  Taft was hardly the first to push back against the Office of Legal Counsel rulings in the wake of 9/11. One colleague described Yoo’s October 23, 2001, memo authorizing the domestic terrorist surveillance program as “weak” and “sloppy” and blind to relevant questions of law.48 To Thomas Romig, Yoo’s proposals on the subject of future military commissions would return the country to the days of “the Indian Wars. I looked at him and said, ‘You know, that was 100-and-something years ago. You’re out of your mind; we’re talking about the law.’” Romig felt that high-level Bush administration officials regarded the concept of due process as so much “mumbo jumbo.” For over a year, Romig struggled to haul national security policy in line with the law, before finally being told “the time for law has passed,” that it was time “to take the gloves off.”49