Guantánamo

  In defending his Geneva and subsequent memos, Yoo argues that it is wrong to confuse the legal rulings that issued from the Office of Legal Counsel with policy. The administration had asked the Justice Department for a reading of the law, and he and his colleagues had responded accordingly. The administration did not have to adopt those rulings as policy, Yoo insists. During the Korean and Vietnam wars, for example, the United States extended Geneva protections to combatants fighting for sides that had not signed the Geneva protocols. The Bush administration could have chosen to do so again. It had not. Yoo says that he made this point to Taft himself a few days after receiving Taft’s dissent at a meeting in the White House Situation Room. “Oh,” Yoo remembers Taft responding with relief, “good.”50

  Down at Guantánamo, Brandon Neely and his fellow prison guards viewed the ambiguity about whether Guantánamo applied as a license to “get some”: to “inflict pain” and “get revenge.”51 Neely remembers the detainees’ arrival that Friday afternoon in great detail. “Everyone,” he reports, “including myself, was very nervous. We did not know when or how many detainees would be arriving that day to Camp X-Ray.” After hours of anticipation, Neely learned that “the detainees were at the air strip” across the bay on Leeward Point, and that they were “being loaded up to bring to the camp.” Neely started getting really nervous, almost scared. “Here it comes,” he thought. “I am fixing to see what a terrorist looks like face-to-face.” Neely’s escort partner was as nervous as he. Indeed, “everybody in the camp that day was nervous and scared; you could literally hear a pin drop moments before that bus full of detainees arrived.”

  Led by “Marine humvees with .50 caliber guns mounted on them,” the bus carrying the detainees pulled up to the gate. Upon contact, the MPs exorcised their anxiety on the detainees. “You could hear the Marines screaming at them ‘Shut the fuck up! You’re property of the United States of America now,’” Neely remembers. As an escort, Neely stood near the doors of the bus as one detainee after another was pushed down the stairs and into the grip of awaiting MPs. “The first person who got off the bus, I will never forget. It was a man with one leg. He was later called Stumpy by everyone.” A short but heavy man, Stumpy hopped forward on one leg as MPs hollered at him to pick up the pace. The second thing off the bus was the detainee’s prosthetic leg, which was casually tossed onto the ground. The detainees’ attire is now the stuff of legend. “The prisoners arrived in orange suits. Some had orange ski caps. They had goggles on their eyes, earmuffs on their ears, surgical masks on their faces, and black gloves on their arms. They were handcuffed and leg-shackled. They had chains around their waists and a padlock on the back. The handcuffs were attached to the waist chain.”

  The manner of the detainees’ transfer to Guantánamo Bay had been a cause of some concern among journalists and human rights officials. As early as January 3, Secretary Rumsfeld fielded questions on “the delicate, difficult, problem of transporting” the detainees from Afghanistan to Guantánamo Bay. “It’s a long way,” Rumsfeld conceded. “It’s one of the disadvantages.” The task would have to be carried out “very, very carefully,” as “every time people have messed with these folks, they’ve gotten in trouble.” These were, after all, “very well trained” and “hardened” men, “willing to give up their lives in many instances.” US military officials would do their “best,” using “the necessary amount of constraint so that those individuals do not kill Americans in transport or in Guantánamo Bay.” Acknowledging the immensity of the task at hand, one reporter asked if the Defense Department had considered using U.S. marshals, who had “tremendous experience” in escorting dangerous prisoners. “I have not addressed that,” Rumsfeld confessed; he assumed that “military personnel” would handle the job.

  A series of recent books argue that the torture and abuse that made Guantánamo and Abu Ghraib notorious was introduced at Guantánamo in autumn 2002 and then migrated to Iraq as part of a top-down, systematic attempt on the part of high-level Bush administration officials to adjust interrogation techniques to meet the challenges of an unprecedented enemy. If true, this cuts against the grain of the last century of modern torture history, which suggests that torture spreads horizontally rather than vertically as interrogators “pass on techniques … through low-level transmission between ordinary soldiers and policemen or by means of simple imitation on the job.”52 Such was the case during the Vietnam War, for instance, where the torture carried out by U.S. military interrogators proceeded without the authority (and perhaps even the knowledge) of top U.S. officials.53 In fact, evidence from Brandon Neely and many others suggests that torture spread both ways at Guantánamo Bay. The abuse and torture of detainees in U.S. custody began long before General Geoffrey Miller showed up at Guantánamo Bay. It began with the first detentions of suspected al Qaeda and Taliban in places such as Kandahar and Bagram, Afghanistan, and migrated along with the detainees to the naval base at Guantánamo Bay.54 Like Neely, soldiers in Afghanistan reported receiving “no specific training on the treatment of detainees”; rather, detainees “relied on their common knowledge in this area,” employing “techniques they literally remembered from the movies.” Expertise was a luxury circumstances didn’t allow; there were simply “too many interrogations and not enough interrogators.”55

  Beginning in late January 2002, Secretary of State Rumsfeld became agitated at the lack of actionable intelligence emanating from Guantánamo Bay. With each passing day, the prospect of attaining useful information became attenuated. By mid-February it was obvious that Joint Task Force 160, which had been charged with overseeing the detention facility, was not up to the more critical task of obtaining information. On February 16 Rumsfeld commissioned JTF 170 to run the intelligence operation.56 To lead JTF 170 the Pentagon selected Major General Michael Dunlavey, a man closely allied with Rumsfeld and other high-ranking Bush administration officials and whom one colleague described as “a tyrant and a strong Republican.”57

  Dunlavey’s arrival in early March, together with Michael Lehnert’s departure at the end of the month, signaled a change in emphasis at Guantánamo from detention to interrogation. From the first interrogations at Camp X-Ray, Lehnert had been concerned about the potential for detainee abuse. This concern mounted over the course of his overlapping month with Dunlavey, when Dunlavey approached Lehnert with a list of proposed techniques designed to coerce detainees to talk.58 Brandon Neely remembers becoming skeptical that many detainees were guilty of anything besides being in the wrong place at the wrong time.59 By May even Dunlavey came to realize that many detainees weren’t talking because they had nothing to say. When he took this message to Pentagon officials, he was informed that there would be no returning detainees to their home country; the interrogations should proceed.60

  In June 2002 an alert FBI agent matched a fingerprint belonging to the supposed “twentieth hijacker,” turned away by immigration officials at the Orlando airport in August 2001, with that of a Saudi citizen named Mohammed al-Qahtani, picked up in Afghanistan in December 2001 and held at Guantánamo Bay. To interrogate al-Qahtani, the FBI dispatched to Guantánamo a senior agent fluid in Arabic and knowledgeable about al Qaeda. Over the course of the next several months, using conventional rapport-building techniques, the agent got al-Qahtani to talk. Al-Qahtani confessed to attending an al Qaeda training session with several of the other hijackers, and to intending to join the 9/11 attacks. But that is about all he had to say, leaving some U.S. officials convinced that he must be hiding something. A conversation ensued: “There were lots of suggestions in August about what to do,” Dunlavey remembered. “There were many ‘brilliant ideas,’ but the difficulty was that military interrogators were trained to interrogate militarily … . The opinion was that with more effective techniques we could make this work.”61

  Thus accelerated the hunt initially begun in the autumn of 2001 for what would become known as “enhanced interrogation” techniques, and the legal justification for implementi
ng them. Bush administration officials continue to insist that these techniques bubbled up from the ranks. But evidence suggests they emanated directly downward from the White House and the Pentagon.62 It was around this time that John Yoo sprang to action once more, authoring perhaps the most notorious of all his legal memorandums. Dated August 1, 2002, the so-called Torture Memo redefined torture to suit the policy of the Bush administration and to ensure that members of the administration who authorized or carried out torture would not be prosecutable under the War Crimes Act. “We conclude that torture as defined in and proscribed by Sections 2340-2340A, covers only extreme acts,” Yoo wrote. “Severe pain is generally of the kind difficult for the victim to endure. Where the pain is physical, it must be of an intensity akin to that which accompanies serious physical injury such as death or organ failure.” By this logic, detainees hung from meat hooks at Kandahar did not suffer torture. “Severe mental pain requires suffering not just at the moment of infliction but it also requires lasting psychological harm, such as seen in mental disorders like post-traumatic stress disorder. Additionally, such severe mental pain can arise only from the predicate acts listed in Section 2340. Because the acts inflicting torture are extreme, there is [a] significant range of acts that though they might constitute cruel, inhuman, or degrading treatment or punishment fail to rise to the level of torture.” Yoo finished with a familiar refrain: if the president says an interrogation technique is necessary, it is not torture. He is the commander in chief.63

  Exposed in the late spring of 2004, the Torture Memo was roundly repudiated. One legal scholar described it as “simply made of whole cloth. Well, not even. There’s no cloth there at all. It is completely unsupported by, and contrary to, the plain words and structure of the [torture] statute.” Another compared it to “discredited legal theories used by Latin American countries” to justify repression. Yoo’s former teacher the Yale professor Harold Koh called the memo “perhaps the most clearly erroneous legal opinion I have ever read.” Another critic simply dismissed it as a “disgrace.” Yet another found that “it falls far below the minimum standards of professional competence.” Conservatives chimed in as well as liberals. The conservative legal scholar Ruth Wedgwood observed that the memo called to mind “the 14th century, when an outlaw was treated like a wild beast.”64 With every additional memo, army judge advocate general Thomas Romig remarked, Yoo seemed to be moving the nation back in time.

  Armed with the August 1 memo defining torture as something Americans would never do, David Addington, Alberto Gonzales, Jim Haynes, and the CIA lawyer John Rizzo flew down to Guantánamo in late September 2002 to speak to personnel in charge of interrogating al-Qahtani. There they consulted with Dunlavey and JTF counsel Diane Beaver about how to induce al-Qahtani to talk.65 Within a few months, and after an organizational review that unified the Guantánamo detention and interrogation commands under the command of General Geoffrey Miller, interrogators at the prison had a list of eighteen “enhanced interrogation” techniques approved by the Pentagon for use on al-Qahtani.66 The interrogation log, publicly available, reveals that over the course of the next fifty-five days, al-Qahtani was systematically broken down. Among other things, he endured twenty-hour interrogations, forced shaving, forced nudity in the presence of a female, and various forms of sexual taunting and humiliation by a female, including straddling and rubbing. He was made to perform dog tricks, put in stress positions for prolonged periods of time, accused of homosexuality, made to wear women’s underwear on his head, forced to pray before an “idol” shrine, told that his mother and sister were whores, shown pornographic pictures, made to dance with a male interrogator, told that other detainees would be told that he became aroused when searched by male guards, and threatened by military dogs.67 “We tortured al-Qahtani,” Susan Crawford, convening authority for the Office of Guantánamo Military Commissions, would later acknowledge. “His treatment met the legal definition of torture. And that’s why I did not refer” al-Qahtani for prosecution.68

  At Bagram air base in December 2002, two suspected terrorists were so violently kicked, punched, and slammed by U.S. soldiers that their muscle tissue disintegrated.69 At Guantánamo Bay that same month, al-Qahtani’s interrogation log suggests that his psyche underwent an analogous fate. What did this treatment accomplish? In June 2004, Gonzales, Haynes, and Haynes’s deputy, Daniel Dell’Orto, told a press conference that the enhanced interrogation techniques used on al-Qahtani (and later others) had worked to elicit crucial intelligence and keep the nation safe. It is too generous to call this claim misleading. The only valuable information al-Qahtani divulged came from the FBI interrogation that preceded the deployment of the new techniques.70

  By the time the detainees arrived at Guantánamo in January 2002, construction was already under way on a more permanent camp out on Radio Range, site of a large refugee camp from the mid-1990s, where sewer, water, and electrical lines were already in place. At this time in the Afghan war, the Bush administration did not intend to run a long-term prison operation at Guantánamo Bay. Norman Rogers was ordered to make the first three compounds of what became known as Camp Delta out of shipping containers, thereby ensuring their portability. Camps 1, 2, and 3, as the Delta units were called, were no less “half-assed” than X-Ray, Rogers remarked. SOUTHCOM intended to use Camp Delta “just long enough to build a real brick and mortar prison over on Leeward,” Jeffrey Johnston explained, referring to the less-developed side of the naval base. By the time Johnston departed SOUTHCOM for a three-year stint in Barstow, California, “we had a master plan and pretty pictures that included not only prisons but a courthouse, housing, recreational facilities and all kinds of new development.” Just as Rogers had originally predicted, the JTF did not like combining a detention mission with the everyday activities of the Guantánamo community. On the Windward Passage side of the base, “detainees in transport were treated like hothouse flowers.” When detainees were on the move, all everyday activities came to an immediate halt.

  But, like Guantánamo projects extending all the way back to those proposed by Spain’s Mopox Commission over two centuries earlier, Leeward Prison “was a great plan not funded.” Granted the money to construct a single “brick and mortar” prison at Leeward, General Geoffrey Miller declined. “On this the much-criticized Miller was spot-on,” Jeff Johnston observes. “He didn’t want to get stuck with half his operations at Windward and half at Leeward. So he built what became Camp 5 on Radio Range.”71 And there the prison has remained.

  Brandon Neely left Guantánamo in midsummer 2002, several months before the enhanced interrogation techniques were deployed on al-Qahtani. Muslim chaplain James Yee, a native of Seattle, Washington, arrived at Guantánamo in November, just as the new techniques were being finalized. His precise role in the detention operation was less than clear, and right away Yee felt uneasy. Some of his uneasiness stemmed from the ambiguity about the Geneva Convention that Neely himself noted. The president’s announcement that Geneva would apply to detainees “to the extent allowed by military necessity” afforded the administration considerable “flexibility,” Yee recognized. “One could argue that everything happening at the facility could be considered an act of military necessity.”72

  Geneva mandated that prisoners receive religious support, but if Geneva didn’t apply at Guantánamo, what did this mean for Yee’s mission? “It seemed I was here to do something that was not wholly supported,” Yee remembers thinking. Was the point of assigning a Muslim chaplain to Guantánamo simply to give the world the impression that the United States was abiding by the dictates of Geneva? Yee’s misgiving was exaggerated by the absence of clear marching orders. His predecessor at the prison cautioned that there was a notable absence of standard operating procedures “for the chaplain’s operation inside the wire, nor is there a job description outlining the Muslim chaplain’s duties and responsibilities.” To compound matters, his predecessor warned Yee that Guantánamo was “not a friendly environment for Mu
slims, and I don’t just mean prisoners.” Sharing the detainees’ religion and language automatically made the Muslim chaplains suspicious in the eyes of many GIs. In time, Yee would come to realize that the Muslim chaplains were as scrutinized as the detainees themselves. “We called the people watching us the ‘secret squirrels,’” he noted. “We never knew who exactly they were.”73

  Yee’s first encounter with Camp Delta left a strong impression. Like Neely, Yee thought initially of animals as he headed into his first block. “I had the distinct feeling of walking into an outdoor stall,” he recalled. “The prisoners were held in two long rows facing each other across a narrow corridor. The cages were open-air and there was a tin roof overhead that trapped and baked the air.” It smelled “like a locker room.” There was no air-conditioning, no circulation. “At Camp Delta, the cages measured eight feet by six feet and the prisoners shared a mesh wall with two prisoners on each side and were in plain view of the detainee in the cage across the corridor.” There was no privacy, and in an awkward moment, Yee met eyes with one of the detainees squatted in the corner of a cell and started to say a greeting before realizing “that he was using the toilet.”74