America’s Disappeared July 18, 2011Posted by rogerhollander in Argentina, Barack Obama, Criminal Justice, Human Rights, Latin America, Torture.
Tags: Alberto Gonzales, Argentina, barry mccaffrey, bush adminsitration, cheney, chris hedges, cia prisons, Condoleezza Rice, david addington, detainees, dirty war, disappeared, drone missiles, george tenet, habeas corpus, human rights, Human Rights Watch, jay bybee, John Ashcroft, john rizzo, john yoo, pakistan, predator missiles, rendition, roger hollander, rumsfeld, torture, william j. haynes
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Dr. Silvia Quintela was “disappeared” by the death squads in Argentina in 1977 when she was four months pregnant with her first child. She reportedly was kept alive at a military base until she gave birth to her son and then, like other victims of the military junta, most probably was drugged, stripped naked, chained to other unconscious victims and piled onto a cargo plane that was part of the “death flights” that disposed of the estimated 20,000 disappeared. The military planes with their inert human cargo would fly over the Atlantic at night and the chained bodies would be pushed out the door into the ocean. Quintela, who had worked as a doctor in the city’s slums, was 28 when she was murdered.(Illustration by Mr. Fish)
A military doctor, Maj. Norberto Atilio Bianco, who was extradited Friday from Paraguay to Argentina for baby trafficking, is alleged to have seized Quintela’s infant son along with dozens, perhaps hundreds, of other babies. The children were handed to military families for adoption. Bianco, who was the head of the clandestine maternity unit that functioned during the Dirty War in the military hospital of Campo de Mayo, was reported by eyewitnesses to have personally carried the babies out of the military hospital. He also kept one of the infants. Argentina on Thursday convicted retired Gen. Hector Gamen and former Col. Hugo Pascarelli of committing crimes against humanity at the “El Vesubio” prison, where 2,500 people were tortured in 1976-1978. They were sentenced to life in prison. Since revoking an amnesty law in 2005 designed to protect the military, Argentina has prosecuted 807 for crimes against humanity, although only 212 people have been sentenced. It has been, for those of us who lived in Argentina during the military dictatorship, a painfully slow march toward justice.
Most of the disappeared in Argentina were not armed radicals but labor leaders, community organizers, leftist intellectuals, student activists and those who happened to be in the wrong spot at the wrong time. Few had any connection with armed campaigns of resistance. Indeed, by the time of the 1976 Argentine coup, the armed guerrilla groups, such as the Montoneros, had largely been wiped out. These radical groups, like al-Qaida in its campaign against the United States, never posed an existential threat to the regime, but the national drive against terror in both Argentina and the United States became an excuse to subvert the legal system, instill fear and passivity in the populace, and form a vast underground prison system populated with torturers and interrogators, as well as government officials and lawyers who operated beyond the rule of law. Torture, prolonged detention without trial, sexual humiliation, rape, disappearance, extortion, looting, random murder and abuse have become, as in Argentina during the Dirty War, part of our own subterranean world of detention sites and torture centers.
We Americans have rewritten our laws, as the Argentines did, to make criminal behavior legal. John Rizzo, the former acting general counsel for the CIA, approved drone attacks that have killed hundreds of people, many of them civilians in Pakistan, although we are not at war with Pakistan. Rizzo has admitted that he signed off on so-called enhanced interrogation techniques. He told Newsweek that the CIA operated “a hit list.” He asked in the interview: “How many law professors have signed off on a death warrant?” Rizzo, in moral terms, is no different from the deported Argentine doctor Bianco, and this is why lawyers in Britain and Pakistan are calling for his extradition to Pakistan to face charges of murder. Let us hope they succeed.
We know of at least 100 detainees who died during interrogations at our “black sites,” many of them succumbing to the blows and mistreatment of our interrogators. There are probably many, many more whose fate has never been made public. Tens of thousands of Muslim men have passed through our clandestine detention centers without due process. “We tortured people unmercifully,” admitted retired Gen. Barry McCaffrey. “We probably murdered dozens of them …, both the armed forces and the C.I.A.”
Tens of thousands of Americans are being held in super-maximum-security prisons where they are deprived of contact and psychologically destroyed. Undocumented workers are rounded up and vanish from their families for weeks or months. Militarized police units break down the doors of some 40,000 Americans a year and haul them away in the dead of night as if they were enemy combatants. Habeas corpus no longer exists. American citizens can “legally” be assassinated. Illegal abductions, known euphemistically as “extraordinary rendition,” are a staple of the war on terror. Secret evidence makes it impossible for the accused and their lawyers to see the charges against them. All this was experienced by the Argentines. Domestic violence, whether in the form of social unrest, riots or another catastrophic terrorist attack on American soil, would, I fear, see the brutal tools of empire cemented into place in the homeland. At that point we would embark on our own version of the Dirty War.
Marguerite Feitlowitz writes in “The Lexicon of Terror” of the experiences of one Argentine prisoner, a physicist named Mario Villani. The collapse of the moral universe of the torturers is displayed when, between torture sessions, the guards take Villani and a few pregnant women prisoners to an amusement park. They make them ride the kiddie train and then take them to a cafe for a beer. A guard, whose nom de guerre is Blood, brings his 6- or 7-year-old daughter into the detention facility to meet Villani and other prisoners. A few years later, Villani runs into one of his principal torturers, a sadist known in the camps as Julian the Turk. Julian recommends that Villani go see another of his former prisoners to ask for a job. The way torture became routine, part of daily work, numbed the torturers to their own crimes. They saw it as a job. Years later they expected their victims to view it with the same twisted logic.
Human Rights Watch, in a new report, “Getting Away With Torture: The Bush Administration and Mistreatment of Detainees,” declared there is “overwhelming evidence of torture by the Bush administration.” President Barack Obama, the report went on, is obliged “to order a criminal investigation into allegations of detainee abuse authorized by former President George W. Bush and other senior officials.”
But Obama has no intention of restoring the rule of law. He not only refuses to prosecute flagrant war crimes, but has immunized those who orchestrated, led and carried out the torture. At the same time he has dramatically increased war crimes, including drone strikes in Pakistan. He continues to preside over hundreds of the offshore penal colonies, where abuse and torture remain common. He is complicit with the killers and the torturers.
The only way the rule of law will be restored, if it is restored, is piece by piece, extradition by extradition, trial by trial. Bush, Dick Cheney, Donald Rumsfeld, former CIA Director George Tenet, Condoleezza Rice and John Ashcroft will, if we return to the rule of law, face trial. The lawyers who made legal what under international and domestic law is illegal, including not only Rizzo but Alberto Gonzales, Jay Bybee, David Addington, William J. Haynes and John Yoo, will, if we are to dig our way out of this morass, be disbarred and prosecuted. Our senior military leaders, including Gen. David Petraeus, who oversaw death squads in Iraq and widespread torture in clandestine prisons, will be lined up in a courtroom, as were the generals in Argentina, and made to answer for these crimes. This is the only route back. If it happens it will happen because a few courageous souls such as the attorney and president of the Center for Constitutional Rights, Michael Ratner, are trying to make it happen. It will take time—a lot of time; the crimes committed by Bianco and the two former officers sent to prison this month are nearly four decades old. If it does not happen, then we will continue to descend into a terrifying, dystopian police state where our guards will, on a whim, haul us out of our cells to an amusement park and make us ride, numb and bewildered, on the kiddie train, before the next round of torture.
Chris Hedges writes a regular column for Truthdig.com. Hedges graduated from Harvard Divinity School and was for nearly two decades a foreign correspondent for The New York Times. He is the author of many books, including: War Is A Force That Gives Us Meaning, What Every Person Should Know About War, and American Fascists: The Christian Right and the War on America. His most recent book is Empire of Illusion: The End of Literacy and the Triumph of Spectacle.
The 13 People Who Made Torture Possible May 18, 2009Posted by rogerhollander in Criminal Justice, Dick Cheney, George W. Bush, Torture.
Tags: abu grhraib, Abu Zubaydah, al-Qaeda, Alberto Gonzales, bagram, cheney, cia interrogation, Condoleezza Rice, david addington, geneva conventions, george tenet, geroge bush, gonzales, Guantanamo, International law, james mtchell, jay bybee, john rizzo, john yoo, marcy wheeler, nuremberg, renditon, roger hollander, rumsfeld, sere, sere techniques, steven bradbury, Taliban, torture, torture memos, torture techniques, torture videos, War Crimes, william haynes
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The Bush administration’s Torture 13. They authorized it, they decided how to implement it, and they crafted the legal fig leaf to justify it.
On April 16, the Obama administration released four memos that were used to authorize torture in interrogations during the Bush administration. When President Obama released the memos, he said, “It is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.”
Yet 13 key people in the Bush administration cannot claim they relied on the memos from the DOJ’s Office of Legal Counsel. Some of the 13 manipulated the federal bureaucracy and the legal process to “preauthorize” torture in the days after 9/11. Others helped implement torture, and still others helped write the memos that provided the Bush administration with a legal fig leaf after torture had already begun.
The Torture 13 exploited the federal bureaucracy to establish a torture regime in two ways. First, they based the enhanced interrogation techniques on techniques used in the U.S. military’s Survival, Evasion, Resistance and Escape (SERE) program. The program — which subjects volunteers from the armed services to simulated hostile capture situations — trains servicemen and -women to withstand coercion well enough to avoid making false confessions if captured. Two retired SERE psychologists contracted with the government to “reverse-engineer” these techniques to use in detainee interrogations.
The Torture 13 also abused the legal review process in the Department of Justice in order to provide permission for torture. The DOJ’s Office of Legal Counsel (OLC) played a crucial role. OLC provides interpretations on how laws apply to the executive branch. On issues where the law is unclear, like national security, OLC opinions can set the boundary for “legal” activity for executive branch employees. As Jack Goldsmith, OLC head from 2003 to 2004, explains it, “One consequence of [OLC’s] power to interpret the law is the power to bestow on government officials what is effectively an advance pardon for actions taken at the edges of vague criminal statutes.” OLC has the power, Goldsmith continues, to dispense “get-out-of-jail-free cards.” The Torture 13 exploited this power by collaborating on a series of OLC opinions that repeatedly gave U.S. officials such a “get-out-of-jail-free card” for torturing.
Between 9/11 and the end of 2002, the Torture 13 decided to torture, then reverse-engineered the techniques, and then crafted the legal cover. Here’s who they are and what they did:
1. Dick Cheney, vice president (2001-2009)
On the morning of 9/11, after the evacuation of the White House, Dick Cheney summoned his legal counsel, David Addington, to return to work. The two had worked together for years. In the 1980s, when Cheney was a congressman from Wyoming and Addington a staff attorney to another congressman, Cheney and Addington argued that in Iran-Contra, the president could ignore congressional guidance on foreign policy matters. Between 1989 and 1992, when Dick Cheney was the elder George Bush’s secretary of defense, Addington served as his counsel. He and Cheney saved the only known copies of abusive interrogation technique manuals taught at the School of the Americas. Now, on the morning of 9/11, they worked together to plot an expansive grab of executive power that they claimed was the correct response to the terrorist threat. Within two weeks, they had gotten a memo asserting almost unlimited power for the president as “the sole organ of the Nation in its foreign relations,” to respond to the terrorist attacks. As part of that expansive view of executive power, Cheney and Addington would argue that domestic and international laws prohibiting torture and abuse could not prevent the president from authorizing harsh treatment of detainees in the war against terror.
But Cheney and Addington also fought bureaucratically to construct this torture program. Cheney led the way by controlling who got access to President Bush — and making sure his own views preempted others‘. Each time the torture program got into trouble as it spread around the globe, Cheney intervened to ward off legal threats and limits, by badgering the CIA’s inspector general when he reported many problems with the interrogation program, and by lobbying Congress to legally protect those who had tortured.
Most shockingly, Cheney is reported to have ordered torture himself, even after interrogators believed detainees were cooperative. Since the 2002 OLC memo known as “Bybee Two” that authorizes torture premises its authorization for torture on the assertion that “the interrogation team is certain that” the detainee “has additional information he refuses to divulge,” Cheney appears to have ordered torture that was illegal even under the spurious guidelines of the memo.
2. David Addington, counsel to the vice president (2001-2005), chief of staff to the vice president (2005-2009)
David Addington championed the fight to argue that the president — in his role as commander in chief — could not be bound by any law, including those prohibiting torture. He did so in two ways. He advised the lawyers drawing up the legal opinions that justified torture. In particular, he ran a “War Council” with Jim Haynes, John Yoo, John Rizzo and Alberto Gonzales (see all four below) and other trusted lawyers, which crafted and executed many of the legal approaches to the war on terror together.In addition, Addington and Cheney wielded bureaucratic carrots and sticks — notably by giving or withholding promotions for lawyers who supported these illegal policies. When Jack Goldsmith withdrew a number of OLC memos because of the legal problems in them, Addington was the sole administration lawyer who defended them. Addington’s close bureaucratic control over the legal analysis process shows he was unwilling to let the lawyers give the administration a “good faith” assessment of the laws prohibiting torture.
3. Alberto Gonzales, White House counsel (2001-2005), and attorney general (2005-2008)
As White House counsel, Alberto Gonzales was nominally in charge of representing the president’s views on legal issues, including national security issues. In that role, Gonzales wrote and reviewed a number of the legal opinions that attempted to immunize torture. Most important, in a Jan. 25, 2002, opinion reportedly written with David Addington, Gonzales paved the way for exempting al-Qaida detainees from the Geneva Conventions. His memo claimed the “new kind of war” represented by the war against al-Qaida “renders obsolete Geneva’s strict limitations on questioning of enemy prisoners.” In a signal that Gonzales and Addington adopted that position to immunize torture, Gonzales argued that one advantage of not applying the Geneva Convention to al-Qaida would “substantially reduce the threat of domestic criminal prosecution under the War Crimes Act.” The memo even specifically foresaw the possibility of independent counsels’ prosecuting acts against detainees.
4. James Mitchell, consultant
Even while Addington, Gonzales and the lawyers were beginning to build the legal framework for torture, a couple of military psychologists were laying out the techniques the military would use. James Mitchell, a retired military psychologist, had been a leading expert in the military’s SERE program. In December 2001, with his partner, Bruce Jessen, Mitchell reverse-engineered SERE techniques to be used to interrogate detainees. Then, in the spring of 2002, before OLC gave official legal approval to torture, Mitchell oversaw Abu Zubaydah’s interrogation. An FBI agent on the scene describes Mitchell overseeing the use of “borderline torture.” And after OLC approved waterboarding, Mitchell oversaw its use in ways that exceeded the guidelines in the OLC memo. Under Mitchell’s guidance, interrogators used the waterboard with “far greater frequency than initially indicated” — a total of 183 times in a month for Khalid Sheikh Mohammed and 83 times in a month for Abu Zubaydah.
5. George Tenet, director of Central Intelligence (1997-2004)
As director of the CIA during the early years of the war against al-Qaida, Tenet had ultimate management responsibility for the CIA’s program of capturing, detaining and interrogating suspected al-Qaida members and briefed top Cabinet members on those techniques. Published reports say Tenet approved every detail of the interrogation plans: “Any change in the plan — even if an extra day of a certain treatment was added — was signed off on by the Director.” It was under Tenet’s leadership that Mitchell and Jessen’s SERE techniques were applied to the administration’s first allegedly high-value al-Qaida prisoner, Abu Zubaydah. After approval of the harsh techniques, CIA headquarters ordered Abu Zubaydah to be waterboarded even though onsite interrogators believed Zubaydah was “compliant.” Since the Bybee Two memo authorizing torture required that interrogators believe the detainee had further information that could only be gained by using torture, this additional use of the waterboard was clearly illegal according to the memo.
6. Condoleezza Rice, national security advisor (2001-2005), secretary of state (2005-2008)
As national security advisor to President Bush, Rice coordinated much of the administration’s internal debate over interrogation policies. She approved (she now says she “conveyed the authorization”) for the first known officially sanctioned use of torture — the CIA’s interrogation of Abu Zubaydah — on July 17, 2002. This approval was given after the torture of Zubaydah had begun, and before receiving a legal OK from the OLC. The approval from the OLC was given orally in late July and in written form on Aug. 1, 2002. Rice’s approval or “convey[ance] of authorization” led directly to the intensified torture of Zubaydah.
7. John Yoo, deputy assistant attorney general, Office of Legal Counsel (2001-2003)
As deputy assistant attorney general of OLC focusing on national security for the first year and a half after 9/11, Yoo drafted many of the memos that would establish the torture regime, starting with the opinion claiming virtually unlimited power for the president in times of war. In the early months of 2002, he started working with Addington and others to draft two key memos authorizing torture: Bybee One (providing legal cover for torture) and Bybee Two (describing the techniques that could be used), both dated Aug. 1, 2002. He also helped draft a similar memo approving harsh techniques for the military completed on March 14, 2003, and even a memo eviscerating Fourth Amendment protections in the United States. The Bybee One and DOD memos argue that “necessity” or “self-defense” might be used as defenses against prosecution, even though the United Nations Convention Against Torture explicitly states that “no exceptional circumstances whatsoever, whether a state of war or a threat or war … may be invoked as a justification of torture.” Bybee Two, listing the techniques the CIA could use in interrogation, was premised on hotly debated assumptions. For example, the memo presumed that Abu Zubaydah was uncooperative, and had actionable intelligence that could only be gotten through harsh techniques. Yet Zubaydah had already cooperated with the FBI. The memo claimed Zubaydah was mentally and physically fit to be waterboarded, even though Zubaydah had had head and recent gunshot injuries. As Jack Goldsmith described Yoo’s opinions, they “could be interpreted as if they were designed to confer immunity for bad acts.” In all of his torture memos, Yoo ignored key precedents relating both specifically to waterboarding and to separation of powers.
8. Jay Bybee, assistant attorney general, Office of Legal Counsel (2001-2003)
As head of the OLC when the first torture memos were approved, Bybee signed the memos named after him that John Yoo drafted. At the time, the White House knew that Bybee wanted an appointment as a Circuit Court judge; after signing his name to memos supporting torture, he received such an appointment. Of particular concern is the timing of Bybee’s approval of the torture techniques. He first approved some techniques on July 24, 2002. The next day, Jim Haynes, the Defense Department’s general counsel, ordered the SERE unit of DOD to collect information including details on waterboarding. While the record is contradictory on whether Haynes or CIA General Counsel John Rizzo gave that information to OLC, on the day they did so, OLC approved waterboarding. One of the documents in that packet identified these actions as torture, and stated that torture often produced unreliable results.9. William “Jim” Haynes, Defense Department general counsel (2001-2008)
As general counsel of the Defense Department, Jim Haynes oversaw the legal analysis of interrogation techniques to be used with military detainees. Very early on, he worked as a broker between SERE professionals and the CIA. His office first asked for information on “exploiting” detainees in December 2001, which is when James Mitchell is first known to have worked on interrogation plans. And later, in July 2002, when CIA was already using torture with Abu Zubaydah but needed scientific cover before OLC would approve waterboarding, Haynes ordered the SERE team to produce such information immediately.Later Haynes played a key role in making sure some of the techniques were adopted, with little review, by the military. He was thus crucial to the migration of torture to Guantánamo and then Iraq. In September 2002, Haynes participated in a key visit to Guantánamo (along with Addington and other lawyers) that coincided with requests from DOD interrogators there for some of the same techniques used by the CIA.
Haynes ignored repeated warnings from within the armed services about the techniques, including statements that the techniques “may violate torture statute” and “cross the line of ‘humane’ treatment.” In October 2002, when the legal counsel for the military’s Joint Chiefs of Staff attempted to conduct a thorough legal review of the techniques, Haynes ordered her to stop, because “people were going to see” the objections that some in the military had raised. On Nov. 27, 2002, Haynes recommended that Secretary of Defense Donald Rumsfeld authorize many of the requested techniques, including stress positions, hooding, the removal of clothing, and the use of dogs — the same techniques that showed up later in the abuse at Abu Ghraib.
10. Donald Rumsfeld, secretary of defense (2001-2006)
As secretary of defense, Rumsfeld signed off on interrogation methods used in the military, notably for Abu Ghraib, Bagram Air Force Base and Guantánamo Bay. With this approval, the use of torture would move from the CIA to the military. A recent bipartisan Senate report concluded that “Secretary of Defense Donald Rumsfeld’s authorization of interrogation techniques at Guantánamo Bay was a direct cause of detainee abuse there.” Rumsfeld personally approved techniques including the use of phobias (dogs), forced nudity and stress positions on Dec. 2, 2002, signing a one-page memo prepared for him by Haynes. These techniques were among those deemed torture in the Charles Graner case and the case of “20th hijacker” Mohammed al-Qahtani. Rumsfeld also personally authorized an interrogation plan for Moahmedou Ould Slahi on Aug. 13, 2003; the plan used many of the same techniques as had been used with al-Qahtani, including sensory deprivation and “sleep adjustment.” And through it all, Rumsfeld maintained a disdainful view on these techniques, at one point quipping on a memo approving harsh techniques, “I stand for eight to 10 hours a day. Why is standing limited to four hours?”
11. John Rizzo, CIA deputy general counsel (2002-2004), acting general counsel of the Central Intelligence Agency (2001-2002, 2004-present)
As deputy general counsel and then acting general counsel for the CIA, John Rizzo’s name appears on all of the known OLC opinions on torture for the CIA. For the Bybee Two memo, Rizzo provided a number of factually contested pieces of information to OLC — notably, that Abu Zubaydah was uncooperative and physically and mentally fit enough to withstand waterboarding and other enhanced techniques. In addition, Rizzo provided a description of waterboarding using one standard, while the OLC opinion described a more moderate standard. Significantly, the description of waterboarding submitted to OLC came from the Defense Department, even though NSC had excluded DOD from discussions on the memo. Along with the description of waterboarding and other techniques, Rizzo also provided a document that called enhanced methods “torture” and deemed them unreliable — yet even with this warning, Rizzo still advocated for the CIA to get permission to use those techniques.
12. Steven Bradbury, principal deputy assistant attorney general, OLC (2004), acting assistant attorney general, OLC (2005-2009)
In 2004, the CIA’s inspector general wrote a report concluding that the CIA’s interrogation program might violate the Convention Against Torture. It fell to Acting Assistant Attorney General Steven Bradbury to write three memos in May 2005 that would dismiss the concerns the IG Report raised — in effect, to affirm the OLC’s 2002 memos legitimizing torture. Bradbury’s memos noted the ways in which prior torture had exceeded the Bybee Two memo: the 183 uses of the waterboard for Khalid Sheikh Mohammed in one month, the gallon and a half used in waterboarding, the 20 to 30 times a detainee is thrown agains the wall, the 11 days a detainee had been made to stay awake, the extra sessions of waterboarding ordered from CIA headquarters even after local interrogators deemed Abu Zubaydah to be fully compliant. Yet Bradbury does not consider it torture. He notes the CIA’s doctors’ cautions about the combination of using the waterboard with a physically fatigued detainee, yet in a separate memo approves the use of sleep deprivation and waterboading in tandem. He repeatedly concedes that the CIA’s interrogation techniques as actually implemented exceeded the SERE techniques, yet repeatedly points to the connection to SERE to argue the methods must be legal. And as with the Bybee One memo, Bradbury resorts to precisely the kind of appeal to exceptional circumstances — “used only as necessary to protect against grave threats” — to distinguish U.S. interrogation techniques from the torture it so closely resembles around the world.
13. George W. Bush, president (2001-2009)
While President Bush maintained some distance from the torture for years — Cheney describes him “basically” authorizing it — he served as the chief propagandist about its efficacy and necessity. Most notably, on Sept. 6, 2006, when Bush first confessed to the program, Bush repeated the claims made to support the Bybee Two memo: that Abu Zubaydah wouldn’t talk except by using torture. And in 2006, after the CIA’s own inspector general had raised problems with the program, after Steven Bradbury had admitted all the ways that the torture program exceeded guidelines, Bush still claimed it was legal.
“[They] were designed to be safe, to comply with our laws, our Constitution and our treaty obligations. The Department of Justice reviewed the authorized methods extensively, and determined them to be lawful.”
With this statement, the deceptions and bureaucratic games all came full circle. After all, it was Bush who, on Feb. 7, 2002, had declared the Geneva Conventions wouldn’t apply (a view the Supreme Court ultimately rejected).
Bush’s inaction in torture is as important as his actions. Bush failed to fulfill legal obligations to notify Congress of the torture program. A Senate Intelligence timeline on the torture program makes clear that Congress was not briefed on the techniques used in the torture program until after Abu Zubaydah had already been waterboarded. And in a 2003 letter, then House Intelligence ranking member Jane Harman shows that she had not yet seen evidence that Bush had signed off on this policy. This suggests President Bush did not provide the legally required notice to Congress, violating National Security Decisions Directive-286. What Bush did not say is as legally important as what he did say.
Yet, ultimately, Bush and whatever approval he gave the program is at the center of the administration’s embrace of torture. Condoleezza Rice recently said, “By definition, if it was authorized by the president, it did not violate our obligations in the Convention Against Torture.” While Rice has tried to reframe her statement, it uses the same logic used by John Yoo and David Addington to justify the program, the shocking claim that international and domestic laws cannot bind the president in times of war. Bush’s close allies still insist if he authorized it, it couldn’t be torture.
‘Ugly’ Questions for Gen. Myers May 14, 2009Posted by rogerhollander in Criminal Justice, Torture.
Tags: Abu Ghraib, al-Qaeda, Alberto Gonzales, david addington, detainees, Dick Cheney, donald rumsfeld, douglas feith, general myers, geneva conventions, Guantanamo, james hill, jane dalton, jay bybee, john rizzo, national security counsel, nuremberg, olc, Pentagon, philippe sands, president bush, richard myers, roger hollander, sere, smoking gun, Taliban, torture, torture team, torture techniques, waterboarding, william haynes
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Tuesday evening offered an unusual opportunity to question the former chairman of the Joint Chiefs of Staff (2001-2005), Air Force Gen. Richard Myers, at an alumni club dinner. He was eager to talk about his just-published memoir, Eyes on the Horizon (and I was able to scan through a copy during the cocktail hour).
Myers’s presentation, like his book, was thin gruel. After his brief talk, he seemed intent on filibustering during a meandering Q & A session. He finally called on me since no other hands were up. Some were yawning, but it was too early to simply leave.
I introduced myself as a former Army intelligence officer and CIA analyst with combined service of almost 30 years. I thanked him for his stated opposition to interrogation techniques that go beyond “our interrogation manual”; and his conviction that “the Geneva Conventions were a fundamental part of our military culture”-both viewpoints emphasized in his book.
I then noted that the recently published Senate Armed Services Committee report, “Inquiry Into the Treatment of Detainees in U.S. Custody,” sowed some doubt regarding the strength of his convictions.
Why, I asked, did Gen. Myers choose to go along in Dec. 2002 when then-Defense Secretary Donald Rumsfeld authorized harsh interrogation techniques and, earlier, in Feb. 2002, when President George W. Bush himself issued an executive order arbitrarily denying Geneva protections to al-Qaeda and Taliban detainees?
I referred Gen. Myers to the Senate committee’s finding that he had nipped in the bud an in-depth legal review of interrogation techniques, when all interested parties were eager for an authoritative ruling on their lawfulness. (The following account borrows heavily from the Senate committee report.)
Background: The summer of 2002 brought to interrogators at Guantanamo fresh guidance, plus new techniques adopted from the Korean War practices of Chinese Communist interrogators who had extracted false confessions from captured American troops.
On Aug. 1, 2002 a memo signed by the head of the Justice Department’s Office of Legal Counsel, Jay Bybee, stated that for an act to qualify as “torture”:
–“Physical pain … must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.
–“Purely mental pain or suffering … must result in significant psychological harm of significant duration, e.g., lasting for months or even years.”
During the week of Sept. 16, 2002, a group of interrogators from Guantanamo flew to Fort Bragg, North Carolina, for training in the use of these SERE (Survival, Evasion, Resistance, & Escape) techniques, which were originally designed to help downed pilots withstand the regimen of torture employed by China. Now, SERE techniques were being “reverse engineered” and placed in the toolkit of U.S. military and CIA interrogators.
As soon as the Guantanamo interrogators returned from Fort Bragg, senior administration lawyers, including William “Jim” Haynes II (Department of Defense), John Rizzo (CIA), and David Addington (counsel to Vice President Dick Cheney), visited Guantanamo for consultations.
And, just to make quite sure there was no doubt about the new license given to interrogators, Jonathan Fredman, chief counsel to CIA’s Counterterrorist Center, also arrived and gathered the Guantanamo staff together on Oct. 2, 2002, to resolve any lingering questions regarding unfamiliar aggressive interrogation techniques, like waterboarding.
Fredman stressed, “The language of the statutes is written vaguely.” He repeated Bybee’s Aug. 1 guidance and summed up the legalities in this way: “It is basically subject to perception. If the detainee dies, you’re doing it wrong.”
Needed: More Authoritative Guidance
Small wonder that on Oct. 11, 2002, Gen. Michael Dunlavey, the commander at Guantanamo, saw fit to double check with his superior, SOUTHCOM commander Gen. James Hill and request formal authorization to use aggressive interrogation techniques, including waterboarding.
On Oct. 25, 2002, Hill forwarded the request to Gen. Myers and Secretary Rumsfeld, commenting that, while lawyers were saying the techniques could be used, “I want a legal review of it, and I want you to tell me that, policy-wise, it’s the right way to do business.” Hill later told the Army Inspector General that he (Hill) thought the request “was important enough that there ought to be a high-level look at it … ought to be a major policy discussion of this and everybody ought to be involved.”
Gen. Myers, in turn, solicited the views of the military services on the Dunlavey/Hill request.
The Army, Navy, Marines and Air Force all expressed serious concerns about the legality of the techniques and called for a comprehensive legal review. The Marine Corps, for example, wrote, “Several of the techniques arguably violate federal law, and would expose our service members to possible prosecution.”
Ends Justify Means?
The Defense Department’s Criminal Investigative Task Force (CITF) at Guantanamo joined the services in expressing grave misgivings. Reflecting the tenor of the four services’ concerns, CITF’s chief legal advisor wrote that the “legality of applying certain techniques” for which authorization was requested was “questionable.” He added that he could not “advocate any action, interrogation or otherwise, that is predicated upon the principle that all is well if the ends justify the means and others are not aware of how we conduct our business.”
Myers’s Legal Counsel, Captain (now Rear Admiral) Jane Dalton, had her own concerns (and has testified that she made Gen. Myers aware of them), together with those expressed in writing by the Army, Navy, Marines and Air Force. Dalton directed her staff to initiate a thorough legal and policy review of the proposed techniques.
The review got off to a quick start. As a first step, Dalton ordered a secure video teleconference including Guantanamo, SOUTHCOM, the Defense Intelligence Agency, and the Army’s intelligence school at Fort Huachuca. Dalton said she wanted to find out more information about the techniques in question and to begin discussing the legal issues to see if her office could do its own independent legal analysis.
See No Evil
Under oath before the Senate Armed Services Committee, Captain Dalton testified that, after she and her staff had begun their analysis, Gen. Myers directed her in November 2002 to stop the review.
She explained that Myers returned from a meeting and “advised me that [Pentagon General Counsel] Mr. Haynes wanted me … to cancel the video teleconference and to stop the review” because of concerns that “people were going to see” the Guantanamo request and the military services’ analysis of it. Haynes “wanted to keep it much more close-hold,” Dalton said.
Dalton ordered her staff to stop the legal analysis. She testified that this was the only time that she had ever been asked to stop analyzing a request that came to her for review.
I asked Gen. Myers why he stopped the in-depth legal review. He bobbed and weaved, contending first that some of the Senate report was wrong.
“But you did stop the review, that is a matter of record. Why?” I asked again.
“I stopped the broad review,” Myers replied, “but I asked Dalton to do her personal review and keep me advised.”
(Myers had a memory lapse when Senate committee members asked him about stopping the review.)
I asked again why he stopped the review, but was shouted down by an audience not used to having plain folks ask direct questions of very senior officials, past or present.
I Confess: Rumsfeld Made Me Do It
Haynes told the Senate committee that “there was a sense by DoD leadership that this decision was taking too long.”
On Nov. 27, 2002, shortly after Haynes told Myers to order Dalton to stop her review – and despite the serious legal concerns of the military services – Haynes sent Rumsfeld a one-page memo recommending that he approve all but three of the 18 techniques in the request from Guantanamo. Techniques like stress positions, nudity, exploitation of phobias (like fear of dogs), deprivation of light and auditory stimuli were all recommended for approval.
On Dec. 2, 2002, Rumsfeld signed Haynes’s recommendation, adding a handwritten note referring to the use of stress positions: “I stand for 8-10 hours a day. Why is standing limited to 4 hours?”
As the shouting by my distinguished colleagues died down, I too remained standing, reminding myself that I had wanted to say a word about the Geneva Conventions, “for which you, Gen. Myers, express such strong support in your book.”
I waved a copy of the smoking-gun, two-page executive memorandum signed by George W. Bush on Feb. 7, 2002. That’s the one in which the President arbitrarily declared that Common Article 3 of the Geneva Conventions did not apply to al-Qaeda and Taliban detainees, and then threw in obfuscatory language from lawyers Addington and Alberto Gonzales that such detainees would nonetheless be treated “humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.”
I then made reference to “Conclusion 1” of the Senate committee report:
“On Feb. 7, 2002, President George W. Bush made a written determination that Common Article 3 of the Geneva Conventions, which would have afforded minimum standards for humane treatment, did not apply to al-Qaeda or Taliban detainees.
“Following the President’s determination, techniques such as waterboarding, nudity, and stress positions … were authorized for use in interrogations of detainees in U.S. custody.”
“Gen. Myers,” I asked, “you were one of eight addressees for the President’s directive of Feb. 7, 2002. What did you do when you learned of the President’s decision to ignore Geneva?”
“Please just read my book,” Myers said. I told him I already had, and proceeded to read aloud a couple of sentences from my copy:
“You write that you told Douglas Feith, ‘I feel very strongly about this. And if Rumsfeld doesn’t defend the Geneva Conventions, I’ll contradict him in front of the President.’
“You go on to explain very clearly, ‘I was legally obligated to provide the President my best military advice – not the best advice as approved by the Secretary of Defense.’
“So, again, what did you do after you read the President’s executive order of Feb. 7, 2002?”
Myers said he had fought the good fight before the President’s decision. The sense was that, if the President wanted to dismiss Geneva, what was a mere Chairman of the Joint Chiefs to do?
In this connection, Myers included this curious passage in his book:
“By relying so heavily on just the lawyers, the President did not get the broader advice on these matters that he needed to fully consider the consequences of his actions. I thought it was critical that the nation’s leadership convey the right message to those engaged in the War on Terror.
“Showing respect for the Geneva Conventions was important to all of us in uniform. This episode epitomized the Secretary’s and the Chairman’s different statutory responsibilities to the President and the nation. The fact that the President appeared to change his previous decision showed that the system, however, imperfect, had worked.”
Enter Douglas Feith
Interestingly, Myers writes, “Douglas Feith supported my views strongly … noting that the United States had no choice but to apply the Geneva Conventions, because, like all treaties in force for the country, they bore the same weight as a federal statute.”
Myers goes on to corroborate what British lawyer/author Philippe Sands writes in The Torture Team about the apparent twinning of Feith and Myers on this issue. Sands says Feith portrayed himself and Myers as of one mind on Geneva.
Just before the President issued his Feb. 7, 2002 executive order, Feith developed this novel line of reasoning: The Geneva Conventions are very important. The best way to defend them is by honoring their “incentive system,” which rewards soldiers who fight openly and in uniform with all kinds of protections if captured.
In his book, Myers notes approvingly that this is indeed the line Feith took with the President at an NSC meeting on Feb. 4, 2002, to which Feith had been invited, three days before President Bush signed the order that has now become a smoking gun.
According to Feith, the all-important corollary is to take care not to “promiscuously hand out POW status to fighters who don’t obey the rules.” “In other words, the best way to protect the Geneva Conventions is to gut them,” as Dahlia Lithwick of Slate put it in a commentary last July.
I suppose it could even be the case that this seemed persuasive to President Bush, as well. Which would mean that Doug Feith has at least two contenders for the unenviable sobriquet with which Gen. Tommy Franks tagged him – “the f—ing stupidest guy on the face of the earth.”
It is not really funny, of course.
While researching his book, Sands, a very astute observer, emerged from a three-hour session with Myers convinced that Myers did not understand the implications of what was being done and was “confused” about the decisions that were taken.
Sands writes that when he described the interrogation techniques introduced and stressed that they were not in the manual but rather breached U.S. military guidelines, Myers became increasingly hesitant and troubled. Author Sands concludes that Myers was “hoodwinked;” that “Haynes and Rumsfeld had been able to run rings around him.”
There is no doubt something to that. And the apparent absence of Myers from the infamous torture boutiques in the White House Situation Room, aimed at discerning which particular techniques might be most appropriate for which “high-value” detainees, tends to support an out-of-the-loop defense for Myers.
I imagine it should not be all that surprising, given the way general officers are promoted these days, that Myers’ vacuousness-cum deference-boarding-on-servility-could land him at the pinnacle of our entire military establishment. Certainly, nothing he said or did Tuesday evening would contradict Sands’ assessment regarding naïveté.
Myers still writes that he found Rumsfeld to be “an insightful and incisive leader.” The general seems to have been putty in Rumsfeld’s hands – one reason he was promoted, no doubt.
My best guess is that it is a combination of dullness, cowardice and careerism that accounts for Myers’ behavior – then and now. And, with those attributes and propensities firmly in place, falling in with bad companions, as Richard Myers did, can really do you in.
As we said our good-byes Tuesday evening, one of my alumni colleagues lamented my “ugly” behavior, although it was no more ugly than it was on May 4, 2006, during my four-minute debate with Donald Rumsfeld in Atlanta. (Sadly, my encounter with Myers was not broadcast live on TV.)
A Plaudit From the Press
In attendance was a reporter from the Washington Post, but his note-taking was confined to computing whether he should take the Post’s buyout, or try to hang around for the newspaper’s inevitable funeral in a couple of years. (So don’t bother looking for a print story on the Myers event.) As we departed, the Post-man gave me what he seemed to think was the ultimate compliment – I should have been a journalist, he said.
I told him thanks just the same – that my experience has been that, unless they promise not to ask “ugly” questions and keep that promise, journalists of the Fawning Corporate Media (FCM) are not permitted to stay around long enough to qualify for a meager 401k – much less an eventual buyout.
At least I was consistent, retaining with such groups an unblemished winning-no-friends-and-influencing-no-people record, originally set three years ago when I had a chance to ask an “ugly” question or two of Donald Rumsfeld.
CIA Waterboarded al-Qaida Suspects 266 Times April 20, 2009Posted by rogerhollander in Criminal Justice, Torture.
Tags: abu zubayday, cia interrogation, geneva conventions, jay bybee, john rizzo, Khalid Sheikh Mohammed, marcy wheeler, matthew weaver, michael hayden, Rahm Emanuel, roger hollander, torture, torture memos, War Crimes, waterboarding
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Published on Monday, April 20, 2009 by The Guardian/UK
Torture technique outlawed by Obama was used extensively on 9/11 plotter Khalid Sheikh Mohammed and alleged terror commander Abu Zubaydah
The CIA waterboarded two al-Qaida terror suspects a total of 266 times, according to a report that suggests the use of the torture technique was much more extensive than previously thought.
The documents showed waterboarding was used 183 times on Khalid Sheikh Mohammed, who admitted planning the 9/11 attacks, the New York Times reported today.
The US Justice Department memos released last Thursday showed that waterboarding, which the US now admits is torture, was used 83 times on the alleged al-Qaida senior commander Abu Zubaydah, the paper said. A former CIA officer claimed in 2007 that Zubaydah was subjected to the simulated drowning technique for only 35 seconds.
The numbers were removed from most of the memos over the weekend. But bloggers, including Marcy Wheeler from empytwheel, discovered that the figure had not been blanked out from one of the memos.
Barack Obama has banned waterboarding and overturned a Bush administration policy that it did not amount to torture.
The president did not intend to prosecute Bush administration officials who devised the policies that led to such interrogations, his chief of staff, Rahm Emanuel, said yesterday.
Asked on Sunday about the fate of those officials, Emanuel told ABC’s This Week programme that Obama believed they “should not be prosecuted either and that’s not the place that we go”.
Michael Hayden, who led the CIA under Bush, said the public release of the memos would make it harder to get useful information from suspected terrorists being detained by the US.
“I think that teaching our enemies our outer limits, by taking techniques off the table, we have made it more difficult in a whole host of circumstances I can imagine, more difficult for CIA officers to defend the nation,” Hayden said on Fox News Sunday.
He disputed an article in the New York Times on Saturday that said Zubaydah had revealed nothing new after being waterboarded, saying that he believed that after unspecified “techniques” were used Zubaydah revealed information that led to the capture of another terrorist suspect, Ramzi Binalshibh.
One of the released memos was a 2002 justice department briefing memo written by assistant attorney general Jay Bybee and sent to John Rizzo, the acting general counsel for the CIA, spelling out in detail how waterboarding should be practised. It specifically refers to the interrogation of Zubaydah using the water technique.
“In this procedure,” Bybee said, “the individual is bound securely to an inclined bench, which is approximately four feet by seven feet. The individual’s feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner. As this is done the cloth is lowered until it covers both the nose and the mouth. Once the cloth is saturated and completely covers the mouth and nose, air flow is slightly restricted for 20 to 40 seconds … this causes an increase in carbon dioxide level in the individual’s blood.
“This increase in the carbon dioxide level stimulates increased efforts to breath. This effect plus the cloth produces the perception of ‘suffocation and incipient panic’, ie the perception of drowning. The individual does not breathe any water into his lungs.”
After the 20 to 40 seconds, the cloth is lifted and the individual is allowed three or four full breaths before the procedure is repeated.
The memo went on to say that “we also understand that a medical expert will be present throughout this phase and the procedure will be stopped if deemed medically necessary to prevent severe mental or physical harm to Zubaydah”.
A footnote to another 2005 justice department memo released last week said waterboarding was used both more frequently and with a greater volume of water than the CIA rules permitted.