Updated October 4, 2007
Americans who receive their news exclusively from local TV might not have noticed, but as the second term of the Bush administration has gotten underway, the topic of torture has been very much in the news. Alberto Gonzales, who played a key role in the creation of a memorandum that declared that the Geneva Conventions concerning prisoners of war did not apply to the Taliban or al Qaeda, has been confirmed as Attorney General. Michael Chertoff who, as head of the Justice Department's criminal division advised on how to craft a torture policy so that administration officials could avoid criminal prosecution, has been confirmed as Secretary of Homeland Security. And on March 1, the ACLU filed suit in federal court against Defense Secretary Rumsfeld alleging that he violated the US Constitution and international laws when he authorized unlawful interrogation methods and failed to stop torture after he knew of it.
The Washington Post noted recently that, Attorney General Gonzales's level of involvement in the formulation of foreign and defense policy during the first Bush term was rare if not unheard of for a White House counsel, even among Gonzales's predecessors, many of whom had considerably more experience in federal law and national security matters. It was his lack of experience that led Gonzales to form a task force to examine the question of how to handle anticipated al Qaeda and Taliban detainees in the aftermath of the September 11 terrorist attacks, and the US military action in Afghanistan.
The interagency group was initially headed by the State Department's war crimes adviser, Pierre-Richard Prosper. In a rare show of judgment, then Attorney General John Ashcroft joined Chertoff and Pentagon lawyers in opposing the suggestion that al Qaeda and Taliban detainees be tried in military courts. Chertoff, Condoleeza Rice (who was then National Security adviser), Rice's deputy Stephen J. Hadley, her legal adviser John Bellinger, as well as lawyers in the State Department were eventually excluded from the process. Two Gonzales deputies, Thomas Flanigan and Bradford A. Berenson, joined Cheney counsel Addington in writing a draft that was eventually approved by the Justice Department Office of Legal Counsel (OLC), asserting the legality of military tribunals. The same OLC had ruled five weeks earlier that presidential power to wage preemptive war against suspected terrorists was essentially unlimited.
Gonzales was a key contributor to what the report of Generals Jones and Fay into intelligence activities at Abu Ghraib called "confusion about what interrogation techniques were approved by law...." On January 18, 2002, Gonzales verbally advised Bush that he could exempt from Geneva Convention protection al Qaeda and Taliban fighters captured on the battlefield in Afghanistan. Bush agreed, and on January 19, Defense Secretary Rumsfeld issued a directive that detainees would receive Geneva Convention protection only "to the extent appropriate and consistent with military necessity."
On January 25, 2002 a memo under Gonzales signature went to Bush formalizing the legal opinion that the so-called war on terror "renders obsolete Geneva's strict limitations on questioning of enemy prisoners." Lawyers in the State Department have since complained that Gonzales misrepresented so many matters of law and fact, including very specific State Department legal positions concerning the Taliban, that at least one considers the memo an "ethical breach."
As with the question of military tribunals, only a small number of like-minded officials had been involved in deliberations. Secretary of State Powell, Chairman of the Joint Chiefs of Staff Myers, and the leaders of the US central command who were conducting the war all opposed the ruling, in part because US adherence to the Geneva Conventions was intended to help ensure similar treatment for US military detainees.
Cheney counsel Addington prepared a summary of the internal debate on the applicability of the Geneva Convention, which included the assertion that the "new paradigm" of the so-called war on terrorism "renders obsolete Geneva's strict limitations on questioning of enemy prisoners." A senior military official involved in the deliberations told the Post that Gonzales's staff had not considered the Geneva Conventions in context, but rather had only looked at them "to see how to justify what they wanted to do." On February 7, 2002 Bush issued an executive order formalizing his earlier decision, but choosing not to exempt Taliban detainees immediately from Geneva Convention protection.
According to Newsweek, along with the February 7, 2002 executive order, Bush authorized the CIA to set up secret detention facilities outside the US, and the administration negotiated "status of forces agreements" with foreign governments, which granted immunity to US personnel and private contractors. To avoid embarrassing political questions, and to avoid being traced, eventually the CIA would use a covert chartered airline to move prisoners among secret facilities.
In March of 2002 it became clear to CIA officials that captured al Qaeda operations chief, Abu Zubaida, was successfully resisting their interrogations. The agency asked for an unprecedented legal review of how much pressure interrogators could bring to bear on a subject without violating a 1994 US anti-torture statute. The issue was taken up by the Justice Department's Office of Legal Counsel (OLC), and Gonzales, then White House counsel, chaired the meetings at which OLC officials briefed members of the executive branch.
The meetings continued through July 2002. Gonzales, according to reports, expressed some concern about observing the law, but was primarily focused on a phrase some have attributed to Donald Rumsfeld: "lean forward." The meaning of the phrase was clarified by the sentence that usually followed it when invoked by members of the Bush administration "Prevent an attack, save lives. The end product of the meetings was a memo drafted by Justice Department lawyer John Yoo, and signed by Assistant Attorney General Jay Bybee, that defined torture narrowly so as not to include "cruel, inhuman or degrading" treatment, but only actions intended to produce extreme pain or permanent damage.
Gonzales raised no objections to the OLC findings and, without consulting military or State Department experts in legal aspects of law and torture, in August 2002 a memo was released, granting the CIA the authority it needed.
Information disclosed in January 2005 suggested that, while Gonzales was one of the faces publicly associated with the August memo, and administration detainee policy, Vice President Cheney's legal counsel, David S. Addington, may have had a greater role in determining the policies. The Washington Post reported "at least one instance" in which Addington "drafted an early version of a legal memorandum circulated to other departments in Gonzales's name." An anonymous official "familiar with the administration's legal policymaking" told the Post that Gonzales often acquiesced in policymaking by others.
Similarly, Chertoff's involvement in the debate on torture inside the Bush White House was only disclosed in late January as Chertoff was scheduled to appear before the Senate Homeland Security and Government Affairs Committee. The Justice Department's criminal division, which Mr. Chertoff headed, was asked on several occasions by the CIA whether its agents risked criminal prosecution for use of a variety of coercive interrogation techniques. The criminal division apparently authorized the use of "waterboarding", in which a subject is restrained and held under water repeatedly. It also indicated that criminality of various practices would depend on what was allowed by the August 2002 memo.
Bybee, who signed the August 2002 memo, is now a federal appellate judge. It was Yoo, however, now a professor at Berkeley, who briefed Gonzales, Ashcroft, Bellinger, Addington, Haynes and the CIA's acting general counsel, John A. Rizzo. At least one of the meetings featured detailed discussion of the techniques the CIA had under consideration, and the physiological effects of their application. In addition to "waterboarding," the techniques included open-hand slapping, and the threat of live burial. The memo defined torture in extremely narrow terms, asserted that the president could authorize it, and authorized the CIA to proceed. The memo was subsequently cited by a Defense Department memo authorizing "exceptional interrogation" at Guantanamo Bay, Cuba. When the memo was leaked in the summer of 2004, Nigel Rodley, the British lawyer who served as a torture monitor for the UN from 1993 to 2001, observed that the policy "sounds like the discredited legal theories used by Latin American countries" to justify repression. Two weeks after the memo was leaked, Gonzales sought to distance himself and other administration officials from it, calling the conclusions "unnecessary, over-broad discussions." The OLC itself, however, did not publicly repudiate the memo until a week before Gonzales's Senate confirmation hearings on his appointment as Attorney General.
Early on in the war in Afghanistan, the Pentagon was reluctant to use the harsher interrogation techniques authorized for the CIA. Brig. Gen. Rick Baccus, the first commander at Guantanamo Bay (GITMO), where detainees judged to pose the greatest threat or believed or have the greatest intelligence value were sent from Afghanistan and elsewhere, provided prisoners with "rights cards," copies of the Qu'ran, and special meals on Islamic holidays. In October 2002 Baccus was relieved, and Rumsfeld put all of GITMO, including military police, under the control of military intelligence. Pentagon officials insist that, in contrast to the CIA, military intelligence officers continued to operate under the uniform code of military justice, and the Geneva Conventions. Increasingly, though, CIA interrogators sat in on military intelligence interrogations, so that in practical terms the distinction lost significance.
After the August 2002 memo, civilians at the Defense Department ordered that the Geneva Conventions were now to be interpreted to allow tougher interrogation techniques. A "knowledgeable source" told Newsweek that "there was almost a revolt" by the judge advocates general (JAGs) -- the top military lawyers who had allied themselves with the State Department position on the Geneva Conventions. The JAGs were joined by lawyers in the office of the chairman of the Joint Chiefs, Gen. Richard Myers.
According to the Wall Street Journal, in addition to the memos of February and August 2002, a 100-page classified document was prepared in March 2003 outlining how US laws and international treaties prohibiting torture might be circumvented by legal technicalities, or set aside in the interest of national security. The central argument, according to the Journal account, was that normal constraints on torture might not apply because nothing is more important than "obtaining intelligence vital to the protection of untold thousands of American citizens." The report went on to argue that as commander in chief, the president has authority to approve almost any interrogation techniques, including torture, regardless of any constraints in US or international law. It also contained suggested defenses for military and civilian personnel accused of torture, including the so-called "Nüremberg" defense that an individual was following orders and no "moral choice was in fact possible."
Military lawyers objected to some of the proposed interrogation methods, because they ran counter to military training that is consistent with the Geneva Conventions. They were also reportedly uncomfortable with the view of presidential power asserted by civilian lawyers in the working group that prepared the document. These political appointees argued that the president had nearly unlimited authority concerning torture. Rather than challenge this view, however, the military lawyers chose to concentrate on limiting some of the more extreme interrogation methods.
In a news conference on June 3, 2004, Gen James T. Hill, who has responsibility for the US prison at Guantanamo as head of the US military southern command, said that he received updated instructions on interrogation methods on April 16, 2003. Four of those techniques, he said, required approval from the Secretary of Defense. The restricted techniques had been used on two people, Hill stated. He characterized the group that developed the March document as having determined "what is humane and what is legal and consistent with not only Geneva, which we've said we would do, and what is right for our soldiers...." "Guantanamo is a professional, humane, detention and interrogation operation. It is bounded by law and guided by the American spirit," Hill said.
As tougher techniques were approved by the military in April 2003, military lawyers mounted one last effort of resistance, and arranged a meeting with Scott Horton, a New York lawyer active in the NY Bar Association's human rights activities. According to Newsweek, they told Horton that they couldn't speak directly about classified matters, but that they believed there was "a calculated effort to create an atmosphere of legal ambiguity" about how the Geneva Conventions should be applied. The JAGs identified Defense Department Under Secretary for Policy Douglas Feith and general counsel William Haynes as the leaders of this effort.
Michael Ratner, president of the Center for Constitutional Rights, a New York advocacy group that has filed lawsuits against US detention policies is among those who have suggested that the March report does not support administration claims that it recognized a duty to treat prisoners humanely. The "claim that the president's commander-in-chief power includes the authority to use torture should be unheard of in this day and age," Ratner told the Journal. "Can one imagine the reaction if those on trial for atrocities in the former Yugoslavia had tried this defense?"
Following reports in 2003 that the US was using coercive interrogation techniques, Sen. Patrick Leahy requested clarification from then National Security Adviser Condoleeza Rice. In response, the Defense Department's general counsel, William J. Haynes II, wrote in June 2003 that the US was obliged to conduct interrogations "consistent with" the 1994 international Convention Against Torture and the federal Torture Statute. The torture statute governs actions by US personnel outside the US, with the understanding that the prohibition against cruel and unusual punishment contained in the eighth amendment to the constitution met the requirements of the 1994 convention. The UN panel that oversees the treaty reaffirmed its provisions after the September 11 terrorist attacks against the US.
Haynes letter to Leahy stated that the U.S. "does not permit, tolerate or condone any such torture by its employees under any circumstances." Moreover, Haynes wrote, the US observed the convention's requirement, "to prevent other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture."
Yet the March report had stated that "other nations and international bodies may take a more restrictive view" of permissible interrogation methods than did the Bush administration, included legal justifications for limiting and disregarding antitorture laws, and offered legal defenses for officials accused of torture.
Under Maj. Gen. Geoffrey Miller, the newly approved interrogation techniques came to be applied at GITMO. Eventually a "72-point matrix for stress and duress" was developed which detailed coercive measures and how they were to be escalated. Techniques included:
- Creating environments of extreme heat or cold
- Withholding food
- Hooding prisoners for days at a time
- Naked isolation in cold, dark cells for up to 30 days
- Threatening prisoners with dogs
- "Stress positions" intended to induce increasing levels of pain
By the summer of 2003 Rumsfeld was reportedly growing impatient about the quality of intelligence coming from Iraq. The insurgency showed no signs of abating, and Rumsfeld desperately wanted information about the missing WMDs and the whereabouts of Saddam Hussein. Noting that GITMO was producing good intelligence, Rumsfeld directed his Under Secretary for Intelligence, Stephen Cambone, to send GITMO commander Miller to Iraq, to try to improve the quality of intelligence coming from interrogations there. Cambone sent his Deputy, Lt. Gen. William Boykin to talk to Miller and arrange the Iraq trip. At the time, Iraqi detentions were under operational control of the 800th Military Police Brigade, headed by Brig. Gen. Janis Karpinski. Karpinski and Maj. Gen. Miller disagree about what Miller said to her during his Iraq trip. Karpinski says that Miller told her that the prison at Abu Ghraib would be dedicated to gathering intelligence. Miller says he recommended that the detention and intelligence commands be integrated. In any case, on November 19, 2003, tactical control of Abu Ghraib was turned over to military intelligence units.
By that time CIA participation in interrogations at Abu Ghraib was routine. According to Paul Wayne Bergrin, a lawyer for MP defendant Sgt. Javal Davis, the CIA "would interrogate, interview prisoners exhaustively, use the approved measures of food and sleep deprivation, solitary confinement with no light coming into cell 24 hours a day. Consequently, they set a poor example for young soldiers but it went even further than that." Bush administration officials have maintained that they were not informed of the alleged abuses at Abu Ghraib until January 2004, but Red Cross warned the US military command in Baghdad in early November 2003, particularly concerning "acts of humiliation such as [detainees'] being made to stand naked ... with women's underwear over the head, while being laughed at by guards, including female guards, and sometimes photographed in this position." Brig. Gen Karpinski told Newsweek that military intelligence officers found these complaints funny. "The MI officers said, 'We warned the [commanding officer] about giving those detainees the Victoria's Secret catalog, but he wouldn't listen'" she said.
Privatization and Learning from Our Friends
Mark Danner's Torture and Truth was published in November 2004. As of that time there were five major investigations of reported abuses at Abu Ghraib prison in Iraq. The investigations each have a more-or-less narrowly circumscribed focus; as a result, none has produced an overview of the full chain of command, from the low-ranking soldiers who have so far been the only individuals charged with crimes, to their local commanders, to the commanders in Iraq and the Middle East, and ultimately to military and political leaders in Washington.
On January 31, 2004 Maj. Gen. Antonio M. Taguba was appointed to investigate the activities of the 800th Military Police, who operated the prison at Abu Ghraib, Iraq. Among its findings, Taguba's report highlighted the role of private contractors in the murky area between military and civilian intelligence gathering. Taguba wrote that Steven Stephanowicz, a "contract US civilian interrogator,"allowed and/or instructed MPs (military police), who were not trained in interrogation techniques, to facilitate interrogations by 'setting conditions' which were neither authorized or in accordance with applicable regulations/policy. He clearly knew his instructions equated to physical abuse."
Stephanowicz was (or is) an employee of CACI International, a Virginia-based defense contractor with ties to Israel.
Taguba also reported that John Israel, a translator who he believed was also a CACI employee, did not have adequate security clearance. Taguba recommended that Stephanowicz be terminated and his security clearance revoked. As of May 5, 2004, however, CACI stated that "all CACI employees continue to work on site providing the contracted for services to our clients in that location.... We have not received any information to stop any of our work, to terminate or suspend any of our employees."
Richard Armitage, who until recently was Deputy Secretary of State in the Bush administration, is a former CACI board member.
As reported by The Daily Star (an English language newspaper published in Lebanon), in January 2004 CACI Chairman Jack London attended the Defense Aerospace Homeland Security Mission (conference) in Israel with a delegation of US members of congress, defense contractors, and pro-Israel lobbyists. The event was sponsored by the Jerusalem Fund of Aish HaTorah, an orthodox "education and outreach" group. A CACI press release described the purpose of London's visit as promoting "opportunities for strategic partnerships and joint ventures between US and Israeli defense and homeland security companies." While on the trip London was presented with the Albert Einstein Technology Award by Israeli Defense Minister Shaul Mofaz at a gala dinner at Jerusalem city hall for "achievements in the field of defense and national security."
The official itinerary for the event includes a visit to Beit Horon, "the central training camp for the anti-terrorist forces of the Israeli police and the border police," in the occupied West Bank. The delegation was also "briefed by top experts," and had an opportunity to "witness exercises related to anti-terror warfare."
CACI has a mixed record fulfilling its government contracts. In March 2004 CACI purchased the defense intelligence assets of American Management Systems (AMS). AMS reportedly installed and operated computer systems at the Department of Housing and Urban Development (HUD), which subsequently failed. As a result of the failure HUD was unable to account for $59 million, and refused to produce audited financial statements. AMS was not fired, and in fact HUD purchased more of their products and services.
As of March 2004, financial software systems provided to the Department of Defense were unable to account for $3.3 trillion. DOD has proposed new financial systems, to be coordinated by IBM, but subcontracted to the firms who developed the original systems, including AMS. Writing for the New Zealand independent news service Scoop, Catherine Austin Fitts, who served as Assistant Secretary of Housing in the Bush I administration, noted that the missing $59 million in HUD and $3.3 trillion in the DOD were "a very big deal" until the terrorist attacks of September 11, 2001. After that, she wrote, "the issue was swept under the rug as significant increases in our national defense, intelligence and enforcement budgets funded rich new contracts for contractors such as CACI...."
The Guardian's Julian Borger observed that civilian contractors "fall through the cracks" of military and legal constraints on abusive behavior. "They cannot be court-martialled under the military code of conduct and Paul Bremer, the leader of the coalition in Iraq, specifically excluded them from Iraqi law," he wrote.
This legal grey area may well not be entirely accidental of course. It means private contractors can be used to do dirty work for the military or the CIA with plausible deniability and relative immunity. In the eyes of military and intelligence chiefs, this very attribute makes them an attractive weapon in the "global war on terror," a conflict fought out in the shadows where the normal legal niceties are a hindrance. Like Guantanamo Bay, they provide another legal loophole that allows Washington to avoid the conventional rules of war.
Elsewhere the Guardian reported that
The sexual humiliation of Iraqi prisoners at Abu Ghraib prison was not an invention of maverick guards, but part of a system of ill-treatment and degradation used by special forces soldiers that is now being disseminated among ordinary troops and contractors who do not know what they are doing, according to British military sources.
The full battery of methods includes hooding, sleep deprivation, time disorientation and depriving prisoners not only of dignity, but of fundamental human needs, such as warmth, water and food.
The Daily Star noted that many of the methods outlined in the Guardian story were "techniques long employed by Israel."
In December 2003, The New Yorker reported that, in a personal victory for Defense Secretary Donald Rumsfeld, a Special Forces unit designated Task Force 121 was formed, comprised of Army Delta Force members, Navy seals, C.I.A. paramilitary operatives, and other personnel. The chief mission of the group, according to the New Yorker, was the capture or assassination of Baathist insurgents. Israeli commandos and intelligence units have apparently been involved in training the task force at the Special Forces training base at Fort Bragg, North Carolina, and in Israel.
The New Yorker quoted a "former Israeli military-intelligence officer" saying that the core lesson was "How to do targeted killing, which is very relevant to the success of the war, and what the United States is going to have to do." US Special Forces units were apparently being trained to function like Israeli covert commando units, including "how to maintain a network of informants."
In addition to Rumsfeld, key DOD players in the task force initiative were Under-Secretary of Defense for Intelligence, Stephen Cambone, and his military assistant, Lt. Gen. William (Jerry) Boykin. Cambone shares Rumsfeld's view that intelligence analysts should not limit their analyses to data at hand, and should routinely be required to justify how they arrived at their conclusions, and identify their sources. It was this approach that led to administration claims about WMD in Iraq, and discounting threats of insurgency there, leading critics to claim that intelligence was being politicized. Cambone was the first Pentagon official to claim that a captured Iraqi truck might be a mobile biological weapons lab. (It was later determined to be a weather balloon station.)
Boykin gained notoriety when the LA Times reported in October 2003 that while teaching Sunday school he regularly compared the Muslim world to Satan. "Satan wants to destroy this nation, he wants to destroy us as a nation, and he wants to destroy us as a Christian army," Boykin told one congregation, according to the Times. Boykin was the Army combat commando in Mogadishu in 1993 when the disastrous mission recorded in Mark Bowden's Black Hawk Down took place, in which eighteen American soldiers were killed. Earlier that year he led an eight-man mission that was tracking the drug dealer Pablo Escobar. Pentagon officials came to believe that, despite being prohibited by law from killing foreign civilians without Presidential approval, Boykin's team exceeded its authority by participating in the successful attempt to assassinate Escobar.
A "a former senior coalition adviser in Baghdad" told the The New Yorker that the use of Special Forces had a particular appeal to the Bush administration, because their numbers are not counted in troop totals that are made public. An unidentified "retired admiral" agreed. "You need more people, but you can’t add them, because Rummy’s taken a position. So you invent a force that won’t be counted."
The sleight-of hand extends to operations, as well. As a "former intelligence official" told The New Yorker, when Special Forces target Baathists "it’s technically not assassination—it’s normal combat operations."
In The Interrogators, Chris Mackey (a pseudonym), who as a reservist in a military intelligence unit served as an interrogator in Afghanistan, wrote that in the early days of the war in Afghanistan violations of the Geneva Conventions, such as putting prisoners in "stress positions" were quickly stopped by supervisory officers. By February 2002, however, military intelligence in Afghanistan received "a barrage of new collection priorities." Most had to do with the exodus of so-called "foreign fighters" (mostly Arabs) from Afghanistan. Interest focused on what Mackey called "the craggy porous border" with Afghanistan.
Although their precise charter is not clear, teams similar to Task Force 121 had been operating in Afghanistan at least since 2002. Mackey referred to a "team of Rangers and special operators conducting raids across Afghanistan in search of leadership figures, including bin Laden" as "Task Force Hatchet" And it was from Task Force Hatchet that, according to Mackey, coercive interrogation techniques that went beyond standard military intelligence training and the Geneva Conventions were introduced in Afghanistan. Sleep deprivation was the first such technique to be applied. Task Force Hatchet had brought in a number of prisoners from a raid in which they hoped to capture Mullah Berader, the senior military commander of the Taliban. US intelligence had no photographs of Berader, so interrogations would be key to determining whether or not he had been caught, and identifying him. After nine hours of interrogation, Mackey and his fellow MI officers were exhausted, as were the prisoners, but the MI liaison to Task Force Hatchet, who Mackey dubbed "Task Force Steve" insisted that the prisoners be kept awake.
When Task Force Steve urged us to keep those ... prisoners awake, it was the first time in the war that anyone of higher rank had challenged the leadership [of his unit] in such a way. Until then, every signal we interrogators got from above -- from the TOC across the airport hallway to the colonels in the CFLCC in Kuwait to the officers at Central Command back in Tampa -- had been in the opposite direction, warning us to observe the Conventions, respect prisoners' rights, and never cut corners.
Steve had made it clear that he thought we were being overly deferential to the Conventions, that we were unnecessarily depriving ourselves of effective techniques that, he implied, were used routinely by other interrogators in other wars.
"I never wavered in my commitment to the Conventions," Mackey wrote, "but I did begin to say, 'Well, how can we justify this?' It was like confronting a tax question back at the office: this is what we want the answer to be. How to we interpret the tax code so that we have 'substantial authority' to justify the conclusions we want." With this new attitude military intelligence officers were mirroring in a tactical setting the approach of the Gonzales staff, looking at the Geneva Conventions only "to see how to justify what they wanted to do."
Although chronology in The Interrogators is sometimes (probably deliberately) difficult to establish, it would seem to have been some time in the spring of 2002 that Mackey first encountered the use of stress positions at the Bagram detention facility in Afghanistan. According to Mackey's account, at first he intervened, reminding the interrogator that he was "not the arbiter of justice for the detainees." But as the use of stress positions became more widespread, once again Mackey's attitude changed. Mackey claims that he "never supported or allowed stress positions to be used as an instrument to coerce someone to talk." But he came to allow them to be used as punishment for "provocations in the booth." Provocations included "any sort of threatening or offensive action toward an interrogator -- or a refusal to follow simple rules like staying in the chair."
In one telling anecdote, Mackey wrote that an important prisoner, who eventually admitted owning an al Qaeda safe house and having worked as a translator for bin Laden, revealed his identity and valuable intelligence when he realized that marathon interrogations were the worst treatment he might face. A military translator told Mackey "He said once he realized this was the worst the Americans were going to do, he decided it was time to reconsider which side he was on."
Mackey wrote that he was "stunned." when he read the one-page "interrogation rules of engagement" that were in effect at the Abu Ghraib prison in Iraq when the abuses occurred that were documented with the sensational photographs that have now been seen around the world. The rules allowed nine techniques beyond the standard sixteen MI interrogation approaches. The nine techniques, use of which required approval from the commanding officer, included use of military dogs in the interrogation booth, sleep deprivation up to seventy-two hours, sensory deprivation (hooding) for up to seventy-two hours, and the stress positions for up to forty-five minutes. "In Afghanistan we had been left largely on our own to sort out the ethical boundaries of our job. But in Iraq harsh methods were approved at the highest levels...," Mackey wrote.
The report of the nominally "independent" Schlesinger commission into the now notorious events at Abu Ghraib prison in December 2003 was released in August 2004. While tiptoeing around the issue of assigning responsibility for the Abu Ghraib abuses to individuals up the chain of command, the Schlesinger report does have strong words for policies that were "contributing causes." The report suggested that the examination of "the extent to which policy processes at the DOD or national level contributed to abuses" should start by looking at policy development in late 2001 and early 2002 when individuals were first being detained in Afghanistan and Guantanamo. The report highlighted, in particular, the debate as to the applicability to al Qaeda and the Taliban of the Geneva Conventions and other laws governing treatment of prisoners.
The Schlesinger report cast the debate clearly as a conflict between the Justice Department's Office of Legal Counsel, the Counsel to the President (then Gonzales), and the DOD General Counsel (Haynes), on the one hand, and the State Department, and the Legal Advisor to the Chairman of the Joint Chiefs on the other. As noted earlier, Haynes and Gonzales advised that neither the Federal War Crimes Act nor the Geneva Conventions would apply to al Qaeda prisoners, and that the president could find that the conventions did not apply to the Taliban. The State Department and the Joint Chiefs argued that "the Geneva Conventions in their traditional application provided a sufficiently robust legal construct under which the Global War on Terror could effectively be waged.
The Schlesinger report stated that "At the February 4, 2002 National Security Council meeting to decide this issue, the Department of State, the Department of Defense, and the Chairman of the Joint Chiefs of Staff were in agreement the all detainees would get the treatment they are (or would be) entitled to under the Geneva Conventions."
Nonetheless, on February 7, 2002 Bush issued his memorandum stating that the Geneva Conventions did not apply to al Qaeda, and that they were therefore not entitled to POW status. Although the Geneva Conventions were deemed to apply to the Taliban, the memo opined that they were not entitled to prisoner of war status either. The memo also asserted that "cruel, inhuman, or degrading" acts would not be illegal, but only acts specifically intended to cause severe pain. Moreover, the president could authorize torture, at his discretion.
When techniques in violation of the Geneva Conventions were authorized on April 16, 2003, it was with the proviso that "Use of these techniques is limited to interrogations of unlawful combatants held at Guantanamo Bay, Cuba." Some techniques required that the Secretary of Defense be notified before they were used. Although the exact mechanism is not detailed in the Schlesinger report, it is clear that some of the techniques authorized for Guantanamo were part of a Special Operations Forces (SOF) document published in February 2003, and were in use in Afghanistan. Consistent with Chris Mackey's account, the Schlesinger report noted that "The 519th Military Intelligence Battalion, a Company of which was later sent to Iraq, assisted in interrogation in support of SOF and was fully aware of their interrogation techniques."
During the late summer of 2003, interrogators and "lists of techniques circulated from Guantanamo and Afghanistan to Iraq."
Absent guidance other than FM 34-52 [the standard military intelligence field manual for conducting interrogations] the officer in charge prepared draft interrogation guidelines that were a near copy of the Standard Operating Procedure created by SOF. It it important to note that techniques effective under carefully controlled conditions at Guantanamo became far more problematic when they migrated and were not adequately safeguarded.
Maj. Gen. Geoffrey Miller brought April 16 document to Iraq in August 2003. Miller reportedly presented conflicting requests, proposing the April 16 document -- originally intended for Guantanamo only -- as a model for interrogation procedures in Iraq, while simultaneously noting that the Geneva conventions applied. On September 14, 2003 Lt. Gen. Richard Sanchez, the operational commander in Iraq, signed an interrogation policy that "contained elements of the approved Guantanamo policy and elements of the SOF policy. Policies approved for use on al Qaeda and Taliban detainees who were not afforded the protection of EPW status under the Geneva Conventions now applied to detainees who did fall under the Geneva Convention protections.
Central Command disapproved the September 14 policy, and a month later a new policy was approved that mirrored an obsolete version of FM 34-52. This older 1987 version allowed interrogators to control all aspects of an interrogation, "to include lighting and heating, as well as food, clothing, and shelter given to detainees." The Schlesinger report noted that "This was specifically left out of the 1992 version, which is currently in use. This clearly led to confusion on what practices were acceptable."
In November 2003, while investigating a shooting incident at Abu Ghraib prison, Specialist Joseph M. Darby received two CDs containing photographs of US military policemen and intelligence officers abusing prisoners. He turned the CDs over to the Army Criminal Investigation Command on January 13, 2004, which began an investigation and interviewed a number of Iraqis who claimed to have been abused at Abu Ghraib. The testimony of thirteen Iraqis was subsequently leaked to the Washington Post, and in April 2004 the photographs were leaked to CBS's Sixty Minutes II. Broadcast of the photographs was delayed until April 28, at the personal request of General Richard B. Myers, Chairman of the Joint Chiefs of Staff.
On November 24, 2004. US District Judge James Robertson ruled that detainees' rights were governed by the Geneva Conventions and that military tribunals for al Qaeda and Taliban prisoners were illegal. On January 31, 2005 US District Judge Joyce Hens Green ruled that holding detainees indefinitely as "enemy combatants" is unconstitutional.
Near the end of his book, Chris Mackey wrote:
The rules of engagement at Abu Ghraib may have had nothing to do with the sadistic behavior that took place in the high-security cellblock known as Tier 1A. But both represented the gravitational laws that govern human behavior when one group of people is given complete control over another in a prison. Every impulse tugs downward. We had seen it in our unit in Afghanistan. The prohibition on the use of stress positions early in the war gave way to policies allowing their use to punish prisoners for disrespectful behavior. The rules were further relaxed by those who followed us at Bagram, and within a year stress positions were a formally authorized interrogation technique by the command in Iraq. Rules regarding sleep deprivation, isolation, meal manipulation, and sensory deprivation followed similar trajectories.
... [One] of the most profound tragedies of Abu Ghraib is that the image of depravity will inflame anti-American sentiment in the Muslim world for a generation, driving who knows how many would-be jihadists into to the ranks of Al Qaeda and other terrorist organizations.... [In] the wake of Abu Ghraib, even if the United States commits itself to the highest ethical standards in its treatment of prisoners, the questions are How long will it last? and Who would believe it?
Johnston, David et al. "Security Nominee Gave Advice to the C.I.A. on Torture Laws" NY Times 29 Jan. 2005
Smith, R. Jeffrey and Dan Eggen"Gonzales Helped Set the Course for Detainees" Washington Post 5 Jan. 2005
January 29, 2005
Johnston, David, et al. "Security Nominee Gave Advice to the C.I.A. on Torture Laws" NY Times 29 Jan. 2005
Barry, John, et al. "The Roots of Torture" Newsweek 24 May 2004.
"Media Availability with Commander, U.S. Southern Command General James T. Hill" News Transcript. Department of Defense. 3 Jun. 2004
Abunimah, Ali "Israeli link possible in US torture techniques" The Daily Star 11 May 2004
Borger, Julian "The danger of market forces" Guardian (UK) 6 May 2004
Leigh, David "UK forces taught torture methods" Guardian (UK) 8 May 2004
"CACI Chairman, President, and CEO Dr. J.P. (Jack) London Receives Albert Einstein Technology Award" News Release. CACI International, Inc. 2 Feb. 2004
Hughlett, Roger "CGI, CACI buying American Management Systems" Washington Business Journal 10 Mar. 2004
Fitts, Catherine Austin "CACI Who?" SCOOP. 3 May 2004.
Hersh, Seymour M. "Moving Targets" The New Yorker 15 Dec. 2003
Mackey, Chris and Greg Miller The Interrogators New York: Little, Brown, 2004.
Danner, Mark. Torture and Truth New York: New York Review of Books, 2004.
Rich, Frank "On Television, Torture Takes a Holiday" NY Times 23 Jan. 2005
Jehl, Douglas "Army Details Scale of Abuse of Prisoners in an Afghan Jail" NY Times 12 Mar. 2005
"Guantanamo detentions ruled unconstitutional" MSNBC/NBC News. 31 Jan. 2005
Borger, Julian "Israel trains US assassination squads in Iraq" Guardian (UK) 9 Dec. 2003
- ACLU's page of documents released in response to a Freedom of Information Act request
- Human Rights Watch's torture page
- The Guardian (UK) report on the network of US detention centers.
- Bob Herbert's column including comments from Read Adm. John Hutson and Brig. Gen. James Cullen.
- U.S. Recruits A Rough Ally To Be a Jailer (NY Times May 1, 2005)
- In U.S. Report, Brutal Details of 2 Afghan Inmates' Deaths (NY Times May 20, 2005)
- Documents Tell of Brutal Improvisation by GIs(Washington Post August 3, 2005)
- Abu Ghraib General Lambastes Bush Administration (truthout.org, August 24, 2005)
- Qaeda-Iraq Link U.S. Cited Is Tied to Coercion Claim (NY Times, December 9, 2005)
- On December 15, 2005 the NY Times reported that after weeks of resistance Bush and McCain Reach Deal on Treatment of Torture Suspects.
- Pentagon Study Describes Abuse by Units in Iraq (NY Times, June 17, 2006)
- The NY Times analyzes the Bush administration's retreat from its aggressive legal stance toward detainees, especially in the context of the Supreme Court ruling that the Geneva Conventions apply.
- Lawyers and G.O.P. Chiefs Resist Proposal on Tribunal (NY Times, September 7, 2006)
- Military Judges Dismiss Charges for 2 Detainees (NY Times, June 5, 2007)
- Secret U.S. Endorsement of Severe Interrogations (NY Times, October 4, 2007