Guantánamo

  The outside world was slow to comprehend the abuse and torture of detainees at Guantánamo Bay. “My gut tells me that the military is being very scrupulous,” Human Rights Watch’s Tom Malinowski remarked in June 2002. “Law enforcement professionals in this country understand that torture is a wonderful technique for getting confessions from innocent people and a lousy technique for getting truth out of guilty people.”98 Later that fall, The New York Times seemed to take at face value statements by Guantánamo officials that all was hunky-dory in the camps. “I don’t want the U.S. Naval Base, Guantánamo Bay, to be viewed in a sense as anything unfair, brutal, human rights violations,” Guantánamo commander Captain Robert A. Buehn remarked. “Certainly, that’s not what’s going on here.” Similarly, General Rick Baccus, who replaced Michael Dulavey in April 2002, insisted that, “while the public debates the technicalities of how these people should be classified, we will continue to follow the traditions of humane treatment. In other countries, these detainees would not be heard from again.”99 The upbeat reports continued through the middle of the following year. While criticizing the legal limbo in which detainees found themselves in March 2003, the Times assured readers that there were “no credible reports of abuse or substantiated complaints about the physical conditions of detainees.” The following May the paper announced that “all reports … indicate that prisoners have not been physically mistreated.”100

  Meanwhile, up in Washington, career intelligence officials became increasingly uncomfortable with the reports coming in from Guantánamo Bay. At the FBI, Marion “Spike” Bowman had, like many of the service JAGs, been left out of the discussion that led defense secretary Rumsfeld to sign off on the enhanced interrogation techniques in November 2002. Bowman, who had spent his career in navy intelligence and as judge advocate at the National Security Agency, among other appointments, was the person who fielded the calls from the concerned FBI agents at Guantánamo. Interrogation plans were advancing not only for al-Qhatani but also for Mohamedou Ould Slahi, another supposed high-value subject, the agents warned, both of which seemed misguided, amateurish, and illegal. Upon hearing from the agents, Bowman directed them to document what they were seeing so he could show the evidence to colleagues in the Defense Department. He then contacted Pentagon legal counsel William Haynes, among others. But Pentagon officials did not make for sympathetic interlocutors, and Bowman had a difficult time getting his reservations heard. Rumsfeld seems to have appointed Haynes general counsel at the Pentagon precisely because he knew Haynes would do his bidding. In this way Haynes was much like Gonzales, and indeed like many second-tier Bush-Cheney appointees. He performed dutifully, quashing independent thinking while leaving no tracks.101

  At the Pentagon, Haynes “tried to control what everybody was doing there,” Bowman reported. “I don’t know whether he listened to anybody else on any of this or not.” Moreover, Haynes himself wasn’t “of a mind to say ‘no’ about anything.” In short, Bowman’s attempt to win an audience atop the Pentagon went nowhere. When the agents’ report finally arrived on his desk in April 2003, Bowman passed it on to John Pistole, deputy assistant director, Counterterrorism Division, FBI, where it was delicately put aside.102

  A democracy, according to a favorite cliché of the last several years, must fight its enemies with one hand tied behind its back, as if renouncing torture or enhanced interrogations amounts to a handicap. This is how the Bush administration saw it in the wake of 9/11, and continues to insist upon today. Evidence from Bowman and others suggests otherwise. By sidelining Bowman and countless other intelligence officials as it formulated national security policies in the wake of 9/11, the Bush administration needlessly handicapped the United States. First, the apparent illegality of U.S. policy exposed officials to criminal charges and alienated important allies. “Beyond any doubt,” Bowman wrote John Pistole, what the United States was doing in Guantánamo “(and I don’t know the extent of it) would be unlawful were these Enemy Prisoners of War (EPW). That they are not so designated cannot be license to do something that you cannot do to an EPW or a criminal prisoner.” Should Bowman refer the evidence to the Defense Department inspector general? he asked Pistole. “Were I still on active duty, there is no question in my mind that it would be a duty to do so.” Second, the new techniques impeded intelligence gathering and the prosecution of suspected war criminals. “These tactics have produced no intelligence of a threat neutralization nature to date and CITF [the Department of Defense’s Criminal Investigation Task Force] believes that techniques have destroyed any chance of prosecuting the detainee.”103

  In an interview with the author Philippe Sands, Bowman articulated what exactly it was that troubled him so much about the enhanced interrogations. They elevate brute force over reason, taking us back to the Middle Ages. “I did not see any rational process—or any thought process—that went into the idea of how you were going to get information out of a person,” Bowman told Sands. To tap the intelligence reservoir of an individual you have to treat detainees as individuals. The new paradigm betrayed no acknowledgment of that. In every single interrogation, Bowman observed, “You have to ask the question, what’s it going to give me? If you can’t answer that question, then the technique isn’t harmless, it’s dysfunctional.”104

  The FBI agent Ali Soufan confirmed Bowman’s misgivings. In early 2002, Soufan, an experienced agent knowledgeable about al Qaeda and who worked on the USS Cole investigation and later interrogated Abu Zubaydah, traveled to Guantánamo Bay to emphasize the need for rapport-building techniques. Accompanying Soufan was Robert McFadden, another experienced interrogator who had worked with Soufan on the Cole investigation and who was now a member of the navy’s Criminal Investigative Service (NCIS). Urged by Soufan to play by the book, Guantánamo military intelligence officials welcomed him with “blank stares,” McFadden reported, as if “thinking, ‘This is bullcrap.’ Their attitude was, ‘You guys are cops; we don’t have time for this.’”105

  In May 2009, Soufan testified before the Senate Judiciary Committee about enhanced interrogation techniques. “From my experience,” he told the committee, “and I speak as someone who has personally interrogated many terrorists and elicited important actionable intelligence—I strongly believe that it is a mistake to use what has become known as the ‘enhanced interrogation techniques,’ a position shared by many professional operatives, including the CIA officers who were present at the initial phases of the Abu Zubaydah interrogation.” Like Saar, Soufan insisted that, far from being faster—the principal defense of torture and enhanced interrogation—the new techniques, “from an operational perspective, are ineffective, slow and unreliable, and as a result harmful to our efforts to defeat al Qaeda.”

  Soufan defended the Army Field Manual from those who regarded it as outdated. “The Army Field Manual is not about being nice or soft,” he observed. Rather, the proper distinction between the Field Manual and the new techniques is that the former is based on what Soufan called, echoing Bowman, “a knowledge-based approach.” With the Army Field Manual as their guide, interrogators can outwit “the detainee by using a combination of interpersonal, cognitive, and emotional strategies to get the information needed.” Such an approach, Soufan pointedly remarked, contrasts sharply “with the harsh interrogation approach introduced by outside contractors and forced upon CIA officials to use.”106

  In May 2010 the popular television drama 24 came to an end after an exhilarating eight-year run. Among other things, fans credited the show for its realism, and for fostering public debate about the relative merits of torture compared to, say, rapport building in eliciting intelligence. The two compliments are contradictory. Among seasoned intelligence officials, there is no debate. Torture doesn’t work.107 “Given the overwhelming negative evidence,” journalist Anne Applebaum has written, “the really interesting question is not whether torture works but why so many people in our society want to believe it works.”108

  The depiction of intell
igence collection in 24 informed Bush administration officials from top to bottom. Not only did Yoo and Homeland Security Chief Michael Chertoff cite 24 as inspiration, but popular depictions of torture influenced “young interrogators” on the ground in Iraq, retired army colonel Stuart Herrington found, where “the chain of command had this thirst for information and thought they could just tell the interrogators, you know, ‘Take the gloves off. We need this information. We need it now.’”109

  Like Soufan, Herrington, who has been conducting interrogations since the Vietnam War, senses “a watershed here with 9/11,” whereby an old reliance on “guile and our wits, knowledge of human psychology, knowledge of the source itself, his language, his culture, the movement that he’s a member of … together with a heavy dose of patience and stealth” was shunted aside by “a big myth” that information was “like a watertap that you can turn on by, you know, a brutal stroke, against the detainee.” Just a few years ago, Herrington told the radio talk show host Terri Gross, it would have been “unthinkable” that “we would be having such a debate.”

  Haynes’s stonewalling of Spike Bowman succeeded in delaying publication of FBI reports of abuse at Guantánamo Bay for two years, until December 2004.110 But Haynes was less successful at brushing off the concern of navy general counsel Alberto Mora, when Mora caught wind of developments at Guantánamo in mid-December 2002. That month, Mora was approached by David Brant, chief of NCIS, one of whose staff members at Guantánamo Bay had come across the log of the al-Qahtani investigation. Unlike their army counterparts, naval investigators at Guantánamo Bay had experience in police work, hence knowledge about effective interrogation. What the navy staffers saw at Guantánamo alarmed them, and it wasn’t long before Brant walked into Mora’s office to deliver the solemn news. To Brant’s relief, Mora was receptive, and within a few days, the two met again, this time with Brant brandishing the al-Qahtani log. “I was appalled by the whole thing,” Mora recalled. “It was clearly abusive and assaultive. It was also clear it would get worse. It could lead to creep, where if the violence didn’t work well, they would double it.”111

  Allegations of torture have become the principal sticking point in criticism of Bush administration detention and interrogation policy. Mora told journalist Jane Mayer that the distinction between torture and cruelty, the foundation of Yoo’s memo, was not the point. “If cruelty is no longer declared unlawful, but instead is applied as a matter or policy, it alters the fundamental relationship of man to government. It destroys the whole notion of individual rights.” Inherent rather than bestowed by government, such rights were universal, Mora explained. They applied “to all human beings, not just in America—even those designated as ‘unlawful enemy combatants.’ If you make this exception, the whole Constitution crumbles. It’s a transformative issue.”112

  To Mora, then, this was a matter of principle, of ultimate ends, not mere procedures, and he determined to do everything in his power to bring the interrogation of al-Qahtani to a stop, even at a cost to his own career. After consulting with peers and receiving permission from his boss, navy secretary Gordon England, Mora went off to visit Haynes. On December 20, Mora dropped by Haynes’s office, explained his opposition to the new techniques, and urged him to advise Secretary of Defense Rumsfeld to rescind his December 2 memo. Two and a half weeks later, on January 9, 2003, with no change to interrogation techniques, Mora returned to Haynes’s office. There Mora conceded that, in theory at least, he could imagine an instance in which a detainee’s knowledge of an impending terrorist attack might justify the use of torture, but surely this so-called burning fuse scenario did not apply at Guantánamo Bay. This was now more than a year after 9/11, and the intelligence value of the detainees had surely been attenuated. Again, Mora’s objections met with no policy change, prompting him to approach Haynes yet again the following week, January 15, this time bearing an unsigned memo describing interrogations at Guantánamo as “at a minimum cruel and unusual treatment, and, at worst, torture,” with which he vowed to go public if the Defense Department did not rescind the authorized techniques. That, finally, was language Haynes could understand. By day’s end, Rumsfeld had revoked his December 2 memo authorizing the new techniques. Rumsfeld also promised to appoint a “working group” consisting of, among others, the military JAGs whose input Addington was determined to ignore. Mora had prevailed.

  Or so it seemed. In fact, Rumsfeld had commissioned not one but two panels that January, a working group consisting of a range of opinion and that included Mora and his service peers, and an Office of Legal Counsel committee headed by Yoo and comprised of, among other figures, Alberto Gonzales; Michael Chertoff, head of the criminal division at the Department of Justice; and a coterie of other high-level Bush administration officials. Within a week, as the working group began its discussion, Yoo produced a lengthy draft memorandum more extreme than his so-called Torture Memo of the previous August. The new memo, signed in April 2003, ratified Guantánamo’s status as a place beyond the reach of law and argued that the president, as commander in chief, had the authority to administer torture, including the gouging of eyes, dousing prisoners with “scalding water, corrosive acid, or caustic substance,” “slitting an ear, nose, or lip, or disabling a tongue or limb.” In what would become a familiar refrain, Yoo later told Mora that his new memo addressed questions of “law,” not matters of “policy,” a claim that appears not only naïve but incredible given the cross-fertilization of staff at the Pentagon and Justice Department.113 If Yoo could not imagine the potential real-world effects of his opinion, he was indeed as unqualified for the job as William H. Taft IV originally suggested.114 Meanwhile, the working group issued a draft report that ignored the reservations of Mora and the military JAGs about enhanced interrogation, while hewing to Yoo’s latest opinion virtually to the letter. Upon seeing the draft report, Mora once again vigorously protested, warning Haynes not to let the secretary of defense sign off on the proposed techniques. The service JAGs who participated in the meeting also issued vehement written objections. 115 When no official working group report came out that spring, Mora assumed his protest had been heard and the report shelved. This was hardly the case. It took the revelations of torture and abuse at Abu Ghraib and the ensuing Senate hearings a year later to alert Mora to the fact that Rumsfeld had signed the final working group report that April, behind the backs of the military lawyers. In the intervening year, twenty-four new techniques (including one suggestively labeled “fear up harsh”) had been operative at Guantánamo Bay—and had migrated to Iraq with the transfer of General Geoffrey Miller.116

  In the end it was not a few good men but the U.S. Supreme Court that brought Bush administration policy at Guantánamo Bay to a precarious heel. The intervention of the High Court was set in motion as early as February 2002, when lawyers filed a habeas corpus petition, Rasul v. Bush, on behalf of two foreign nationals detained at the naval base. John Yoo’s gamble of legal immunity at Guantánamo Bay would be tested. At first things seemed to be going Yoo’s way. At the end of July, D.C. District Court judge Colleen Kollar-Kotelly dismissed the habeas petition due to lack of federal jurisdiction over foreign nationals detained at Guantánamo. The following March, the D.C. Circuit Court affirmed the District Court’s ruling, arguing that federal courts had no authority at Guantánamo Bay. Undeterred, the detainees’ counsel filed a petition for writ of certiorari before the Supreme Court, which the Court granted the succeeding month, consolidating what were in fact three separate cases under the name Rasul v. Bush. Oral arguments occurred on April 20. On June 28, 2004, by a 6-to-3 majority, the High Court ruled in favor of the petitioners, affirming the right of Guantánamo detainees to challenge their detention in court.

  The Court’s ruling in Rasul was notable for several reasons. First, by appearances, anyway, John Yoo had lost. He had warned that a federal court might side with a challenge to Bush policy, but he certainly didn’t expect that to happen. Second, Justice John Stevens, who wrote
the majority opinion arguing that the United States was de facto sovereign at Guantánamo Bay, hence habeas applied there, was the same person who had earlier denied constitutional protections to Haitian migrants detained at Guantánamo in the 1990s.117 What had changed over the intervening decade? Both the magnitude of the assertion of presidential power and its potential repercussions. “What is presently at stake,” Stevens wrote in Rasul, “is only whether the federal courts have jurisdiction to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing.” To this question, the majority offered a resounding yes.

  Still, the Court was vague on exactly what form of relief should be granted the detainees. “Whether and what further proceedings may become necessary after respondents make their response to the merits of petitioners’ claims are matters that we need not address now,” the Court ruled, thereby passing the buck. The Bush administration was only too happy to seize back the initiative.118