Among the latter was a meticulous Defense Department (DoD) memo parsing the language of the GC, the Convention Against Torture, the Constitution, U.S. Army publications on interrogation techniques, and U.S. law. The memo, prepared by DoD civilians, so dismayed senior uniformed lawyers that, two weeks after the memo was completed, a number of them sought the assistance of the New York branch of the American Bar Association to stop what was manifestly an ill-conceived effort to circumvent the 1949 GC, which had eliminated technicalities in earlier international law that could be used to deny detainees status as “protected persons” as provided for in the 1949 revisions.1
The Legal Evidence
By the time the torrent abated, twelve letters and memoranda plus one report were on the Internet. Six of these originated in DoJ, one was a letter signed by President Bush, and six – including an 85-page report – originated in the Pentagon. There was also a one-page press briefing paper listing allowed interrogation techniques for GTMO detainees. These documents revealed none of the reported ambivalence of the highest ranking military lawyers about the new rules promulgated by the Pentagon pertaining to permitted and prohibited methods of interrogating detainees, whether prisoners of war or members of that new category declared by President Bush – “unlawful combatants.”2
Since 1949, the U.S. has fought major wars in Korea, Vietnam, and the Gulf and captured or otherwise interned or detained thousands of individuals. While the chronology of memos and reports presents what was happening, it does not go to the deeper – the moral – question of why. It is as if the effort to subvert the GC and other international prohibitions against torture “started without starting.”
Whereas most Americans will evaluate a moral choice in terms of what will produce the greatest good or minimize evil, these memos reveal a conscious effort to dissect or “deconstruct” the meaning of rules designed to ensure respect for fundamental human dignity – with the sole aim of undercutting the legal restraints which safeguard moral conduct in war.1 One well-known example of deconstruction is President Clinton's response to a question in his grand jury deposition about his relationship with Monica Lewinsky: “It depends on what the meaning of the word 'is' is. If 'is' means 'is and never has been' that's one thing – if it means 'there is none,' that was a completely true statement.” Imagine the difference for arms control negotiations – or the evaluation rejecting Saddam Hussein's December 2002 denial that he had unconventional weapons that led to war – if policy makers had to differentiate between “is and never has been” and “there is none.”
The thrust of the discussions was to develop an argument that torture is really not torture unless the “right” (really the wrong) circumstances exist. Thus, the memos assert, if physical pain is not “severe” or is a mere by-product of efforts to elicit information from a detainee, then there is no question of whether the acts constitute torture. One Justice Department memorandum implies that there is a threshold of pain that must be crossed for torture to exist, pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” Similarly, psychological assaults that do not result in “significant” long-term damage (which could not be known until the “longterm” is reached), or which do not “penetrate to the core of an individual's ability to perceive the world around him” or “substantially [interfere] with his cognitive abilities, or fundamentally alter his personality,” are not torture.1
These opinions, together with the claim that the President in his role as commander-in-chief is not bound by either U.S. or international rules prohibiting torture, run directly counter to what the Army teaches its interrogators, counter to what U.S. practice has been for more than three decades, and counter to what the nations of the world, including the United States, have agreed in the GC. If the United States claims exemption or immunity for “national security,” what is to prevent other commanders-in-chief from doing the same? To what higher standard will the President appeal to prevent the torture of captured U.S. service members in future wars?
Attorney General Ashcroft, appearing before the Senate Judiciary Committee on June 8, 2004, stated that President Bush had never issued orders that “would require or direct” violations of the GC against torture. But the very fact that key government officials even considered the possibility of ignoring the Conventions, let alone developed and circulated “rationales” to circumvent the rules, reinforces the world's perception that the U.S. will ignore “civilized” norms whenever it chooses – thereby making it as morally bereft as its enemies.
The Military Lawyers Speak
Though the documents that were eventually released in June 2004 did not include any indication that the concerns of the military lawyers and other top military brass were considered, the JAGs did eventually have their “day in court.” Though the nomination and subsequent confirmation of White House Counsel Alberto Gonzales as new attorney general following John Ashcroft's resignation confirmed that clear lines between allowed and prohibited acts would be no more forthcoming in the second George W. Bush administration than in the first, the hearings for Gonzales's confirmation at least provided an opportunity for the concerns of some recently retired senior military leaders, some senior JAGs, to be heard. Gonzales's nomination was publicly opposed in a January 4, 2005, press gathering by 12 retired generals and admirals who, in stark terms, decried his role in the torture policy formulation.1 These included three retired four-stars: a former chairman of the Joint Chiefs of Staff, a former commander of U.S. Central Command (CENTCOM), a former chief of staff of the Air Force; and several senior retired military lawyers: two former Navy judge advocates general, a former Navy inspector general, a former Marine Corps senior legal advisor, and a former chief judge of the Army Court of Criminal Appeals. The group's spokesman, former CENTCOM commander and retired Marine Corps Gen. Joseph Hoar, expressed “deep concern” about the nomination as it was still unclear what role Gonzales actually had in determining the policy on torture. The former Army appeals court judge, retired Brig. Gen. James Cullen, was more direct: “I think he's had such an appalling departure from good judgment.”
In their open letter to the Senate Judiciary Committee for Gonzales's January 6, 2005, confirmation hearing, the officers pointed out that he “played a significant role in shaping U.S. detention and interrogation operations in Afghanistan, Iraq, GTMO, and elsewhere. Today,” they continued,
it is clear that these operations have fostered greater animosity toward the United States, undermined our intelligence gathering efforts, and added to the risks facing our troops serving around the world. Before Mr. Gonzales assumes the position of Attorney General, it is critical to understand whether he intends to adhere to the positions he adopted as White House Counsel, or chart a revised course more consistent with fulfilling our nation's complex security interests, and maintaining a military that operates within the rule of law.
Of particular concern to the admirals and generals was the fact that
… Mr. Gonzales wrote to the President on January 25, 2002, advising him that the GC did not apply to the conflict then underway in Afghanistan. More broadly, he wrote that the “war on terrorism” presents a “new paradigm [that] renders obsolete Geneva's” protections.
Even more disturbing, they noted, was that
the White House decision to depart from the GC in Afghanistan went hand in hand with the decision to relax the definition of torture and to alter interrogation doctrine accordingly. Mr. Gonzales's January 2002 memo itself warned that the decision not to apply Geneva Convention standards “could undermine U.S. military culture which emphasizes maintaining the highest standards of conduct in combat, and could introduce an element of uncertainty in the status of adversaries.” Yet Mr. Gonzales then made that very recommendation with reference to Afghanistan, a policy later extended piece by piece to Iraq.
Finally, they took strong issue with “[a] series of memos that were prepared
at [Gonzales's] direction in 2002 recommend[ing] official authorization of harsh interrogation methods, including water-boarding, feigned suffocation, and sleep deprivation …. these memos,” they continued,
ignored established U.S. military policy, including doctrine prohibiting “threats, insults, or exposure to inhumane treatment as a means of or aid to interrogation.” Indeed, the August 1, 2002, Justice Department memo analyzing the law on interrogation references health care administration law more than five times, but never once cites the U.S. Army Field Manual on interrogation. The Army Field Manual was the product of decades of experience – experience that had shown, among other things, that such interrogation methods produce unreliable results and often impede further intelligence collection. Discounting the Manual's wisdom on this central point shows a disturbing disregard for the decades of hard-won knowledge of the professional American military.
Abu Ghraib: Unweaving the Web
There is a sad and ironic note struck in the officers' January 2005 letter when they point out that Gonzales himself admitted that refusing to grant Geneva Convention protection could “introduce an element of uncertainty in the status of adversaries.” The fruits of this uncertainty are well known, as these officers pointed out:
Sadly, the uncertainty Mr. Gonzales warned about came to fruition. As James R. Schlesinger's panel reviewing Defense Department detention operations concluded earlier this year, these changes in doctrine have led to uncertainty and confusion in the field, contributing to the abuses of detainees at Abu Ghraib and elsewhere ….
The fruits of this uncertainty include the at least 58 individuals who were implicated in the Abu Ghraib horror, either as direct participants, as knowing about but failing to report the abuses, or otherwise bearing “responsibility” without “culpability” for the 66 incidents substantiated by the August 24, 2004, “Final Report of the Independent Panel to Review DoD Detention Operations” (the Schlesinger panel). Of these, eight occur at Guantánamo, three in Afghanistan, and 55 at Abu Ghraib. They also include the cases beyond those indicated in the premature “final report.” An Army report, dated August 23, 2004, and released on August 25, the day after the Schlesinger panel's report was released, documented 44 cases at Abu Ghraib. Then, in December 2004, a leaked memo dated June 25, 2004, from Vice Admiral Lowell Jacoby, head of the Defense Intelligence Agency to Stephen Cambone, under secretary of defense for intelligence, implicated Navy special operations personnel (of Task Force 62–6) in the physical abuse of prisoners as well as in threatening DIA civilians if they told anyone of abuses seen at Abu Ghraib.
Additional reports, and information that continues to come out in the press, indicate still more “fruits” of “uncertainty in the status of adversaries.” The so-called Church report, more exactly a “review of DoD detention operations and detainee interrogation techniques,” released on March 10, 2005, examined 71 confirmed criminal cases of abuse in Afghanistan, Iraq, and GTMO, and noted, as of September 30, 2004, another 130 open cases with investigations ongoing. Press reports have revealed that FBI agents visiting Abu Ghraib witnessed and reported abuses that took place in the last three months of 2003, and that the CIA directed its agents to stay away from interrogations conducted by the military in which “harsh techniques” were used. On August 30, 2004, it was reported that Lt. Gen Ricardo S. Sanchez, Commander, Combined and Joint Task Force 7 (CJTF-7), sent a secret cable to his superior at U.S. Central Command outlining aggressive interrogation techniques that he then intended to authorize. Sanchez's September 14, 2003, memo – the text of which was obtained via an American Civil Liberties Union (ACLU) Freedom of Information Act (FOIA) request1 – confirms his order to use dogs, stress positions, and disorientation. Further documents obtained via FOIA request also revealed FBI agents complaining of tactics such as the shackling of detainees to the floor for more than 24 hours at a time, without food and water; draping a detainee in an Israeli flag; and the use of growling dogs. On October 27, 2004, Amnesty International (AI) released a report which cited a late 2004 memo from the JTF-170 (Guantánamo) commander requesting approval to use interrogation techniques such as
stress positions, isolation, sensory deprivation, hooding, 20-hour interrogations, stripping, forced grooming, use of dogs to inspire fear, exposure to cold water or weather, death threats and use of wet towel and dripping water to induce the misperception of suffocation.2
On March 21, 2005, Senator Carl Levin (D-Mich.) released a memo, contained in the material provided via the December 2004 ACLU FOIA request, that was originally released in a version redacted by DoJ according to its own and DoD's guidance. Of note in the newly available, un-redacted memo was an assessment by an FBI agent that intelligence resulting from interrogations was “suspect at best,” and a note of the fact that Justice Department officials were so bothered by issues surrounding interrogation methods that they went to DoD Counsel William J. Haynes II with their concerns in an attempt to dissuade DoD from the practices to which they objected. In a meeting that FBI officials had with Maj. Gen. Geoffrey D. Miller, commander of Joint Task Force Guantánamo from September 2002 to March 2004, and another Army general, in an effort to resolve those concerns, both sides agreed that the FBI had its rules, and DoD had marching orders from Secretary Rumsfeld. The generals felt “they had a job to do,” the memo reported.
Meanwhile, still more reports reveal continued “fruits of uncertainty” as to the status of detainees. Officials have indicated – as of March 2005 – that at least 108 people have died in U.S. custody in Iraq and Afghanistan, and 26 of those are confirmed or suspected criminal homicides. Other reports document the “rendition” by the CIA of possibly 150 people from the U.S. to countries strongly suspected of using torture as an interrogation tool.
More Than Just Numbers
The statistics themselves are notable, but they fail to convey the truly human tragedy that the torture and abuse scandal represents, regardless of who is accountable or how it happened. Reports that have come out, such as those by Maj. Gen. Antonio Taguba, dated June 8, 2004, have detailed the use of techniques such as:
… breaking chemical lights and pouring the phosphoric liquid on detainees; pouring cold water on naked detainees; beating detainees with a broom handle and a chair; threatening male detainees with rape; allowing a military police guard to stitch the wound of a detainee who was injured after being slammed against the wall in his cell; sodomizing a detainee with a chemical light and perhaps a broom stick, and using military working dogs to frighten and intimidate detainees with threats of attack, and in one instance actually biting a detainee.
Since then, other press accounts have detailed incidents such as the death of Manadel al-Jamadi, who was captured by Navy SEALs during a joint CIA-special operations mission in November 2003. He was found dead, suspended by his wrists, handcuffed behind his back – a position known as “Palestinian hanging,” according to investigative files from the Army and the CIA's Office of Inspector General. An Army guard was quoted in these reports as having told investigators that blood gushed from al-Jamadi's mouth “as if a faucet had been turned on” when he was lowered to the ground. Jerry Hodge, the military pathologist who autopsied al-Jamadi last year, told the CIA's Inspector General's office – again according to the same report – that “the position that al-Jamadi was placed [in] for interrogation together with the hood (covering his head) was 'part and parcel' of the homicide.” Hodge found broken ribs and bruised lungs consistent with “slow, deliberate application of force,” such as someone kneeling on his chest or holding him down with the soles or heels of their boots. (The Navy SEAL charged in the case with assault, dereliction of duty, conduct unbecoming an officer, and making false statements, Lt. Andrew K. Ledford, was acquitted of wrongdoing on May 27, 2005.)
Still other disturbing reports detail the beating of GTMO detainee, Mustafa Ait Idir, who was left with scars and partial facial paralysis, according to a lawsuit filed on April 13, 2005. Other reports from GTMO include
descriptions of detainees who were struck with chairs, sexually assaulted, and forced to eat meals out of a toilet. Reports coming out of Afghanistan are no better. A recent series by New York Times reporter Tim Golden - based upon a nearly 2,000-page file recording a criminal investigation into the brutal deaths of two detainees, Messrs. Habibullah and Dilawar, at the Bagram Collection Point, and which led to 7 Army criminal charges - notes sworn statements attesting to a female interrogator stepping on the neck of a prostrate detainee and kicking another in the genitals;
… a shackled prisoner being forced to roll back and forth on the floor of a cell, kissing the boots of his two interrogators as he went …. [and] another prisoner … made to pick plastic bottle caps out of a drum mixed with excrement and water as part of a strategy to soften him up for questioning.1
The Army coroner who conducted the autopsy in the case of one of the Bagram deaths offered a sobering assessment: “I've seen similar injuries in an individual run over by a bus.”2
Robert Fisk, the veteran Middle East reporter, recently provided just a sketch of what he has heard from numerous interviews:
A vast quantity of evidence has now been built up on the system which the Americans have created for mistreating and torturing prisoners. I have interviewed a Palestinian who gave me compelling evidence of anal rape with wooden poles at Bagram – by Americans, not by Afghans.
Many of the stories now coming out of Guantánamo – the sexual humiliation of Muslim prisoners, their shackling to seats in which they defecate and urinate, the use of pornography to make Muslim prisoners feel impure, the female interrogators who wear little clothing (or, in one case, pretended to smear menstrual blood on a prisoner's face) – are increasingly proved true. Iraqis whom I have questioned at great length over many hours, speak with candor of terrifying beatings from military and civilian interrogators, not just in Abu Ghraib but in U.S. bases elsewhere in Iraq.
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