Quotes of the week:
“Congress lacks authority to set the terms and conditions under which the president may exercise his authority as commander in chief to control the conduct of operations during a warCongress may no more regulate the president’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield. Accordingly, we would construe [the law] to avoid this difficulty and conclude that it does not apply to the president’s detention and interrogation of enemy combatants.” (From a 56-page memo, “Detainee Interrogation in the Global War on Terrorism” written by a legal team for the Secretary of Defense on the eve of the Iraq War.)
“Congress shall have the power to declare war and make rules concerning captures on land and water to define offenses against the law of nations [and] to make rules for the government and regulation of the land and naval forces.” (From the Constitution, David G. Savage and Richard B. Schmitt, Lawyers Ascribed Broad Power to Bush on Torture, the Los Angeles Times)
“We need to have a less-cramped view of what torture is and is not.” (A military official explaining the approach of the team writing the above memo, Jess Bravin, Pentagon Report Set Framework For Use of Torture, The Wall Street Journal)
“It’s a very cowboy kind of affair.” (Lt. Col. Steven L. Jordan, who controlled the Joint Interrogation and Debriefing Center at Abu Ghraib prison, speaking of the actions of the CIA unit there, R. Jeffrey Smith, Soldier Described White House Interest, the Washington Post)
For his dystopia, 1984, his classic novel of totalitarianism, George Orwell created “Room 101,” an interrogation room where a prisoner’s deepest fears were to be realized and applied. Tier 1 in Iraq’s Abu Ghraib prison, as the now-infamous photos indicate, was the Bush administration’s Room 101 for the “Arab mind,” and so the crown jewel of its global interrogation facilities; just as Guantanamo was the “crown jewel” of the prison camps in its global Bermuda Triangle of injustice; just as the new appointed “interim government” hidden within the ever-more fortified Green Zone in Baghdad and led by a prime minister and former CIA asset whose exile organization, we learned this week, once set off car bombs in downtown Baghdad, is now the crown jewel of “freedom and democracy” in the Middle East. This is our “war against terrorism.” Talk about an Orwellian world.
As it happens, from the heart of Abu Ghraib’s interrogation rooms and the acts of, as our President and other administration officials have repeatedly said, “a few people” or even “a few hillbillies,” the nature of, extent of, knowledge about, and responsibility for such acts has been rapidly spreading outwards across the imperium, upwards into the highest reaches of our government, and backwards in time. We now know, for instance, that, to the various acts of horror caught on camera in Abu Graib, we must add murder (or rather numerous murders) in Afghanistan as well as Iraq, and the use of electric shocks on prisoners, as the Marine Corps Times reported recently.
As for the acts we saw in the photographs, they too have “spread” and knowledge of them reaches ever higher: To take but two examples, Nakedness is now reported to have been used as a tool of humiliation not just in Iraq but in Afghanistan and at Guantanamo, as it was used in one of the earliest acts of American inhumanity in the war against terrorism, the interrogation of John Walker Lindh in Afghanistan back in 2001; while the “technique” of menacing prisoners with dogs — “an apparent violation of the Geneva Conventions and the Army’s field manual” — has now been well documented at Abu Ghraib by the Washington Post (“On Jan. 13, Spec. John Harold Ketzer, a military intelligence interrogator, saw a dog team corner two male prisoners against a wall, one prisoner hiding behind the other and screaming, he later told investigators. ‘When I asked what was going on in the cell, the handler stated that he was just scaring them, and that he and another of the handlers was having a contest to see how many detainees they could get to urinate on themselves'”); but it was also evidently employed at Guantanamo, according to the Wall Street Journal.
In the meantime, responsibility for such actions has moved inexorably upwards. We know now that interest in information gleaned from interrogations, ranging from that of John Walker Lindh to those in Iraq was requested at the highest official levels (not so surprising, since our offshore mini-gulag was a pet project of top officials in this administration): “The head of the interrogation center at the Abu Ghraib prison in Iraq told an Army investigator in February that he understood some of the information being collected from prisoners there had been requested by ‘White House staff,’ according to an account of his statement obtained by The Washington Post.” Far more specifically, R. Jeffrey Smith and Josh White of the Post reported this Saturday that, despite his denials to Congress, in the fall of 2003, “Lt. Gen. Ricardo S. Sanchez, the senior U.S. military officer in Iraq, borrowed heavily from a list of high-pressure interrogation tactics used at the U.S. detention center in Guantanamo Bay, Cuba, and approved letting senior officials at a Baghdad jail use military dogs, temperature extremes, reversed sleep patterns, sensory deprivation, and diets of bread and water on detainees whenever they wished, according to newly obtained documents.”
In turn, thanks to Jess Bravin and Greg Jaffe of the Wall Street Journal, we now know that in December 2002 Donald Rumsfeld approved a very similar list of “interrogation techniques” right down to those dogs for Guantanamo: “U.S. military interrogators at Guantanamo Bay, Cuba, could put prisoners in ‘stress positions’ for as long as four hours, hood them and subject them to 20-hour-long interrogations, ‘fear of dogs’ and ‘mild non-injurious physical contact,’ according to [a] list of techniques Defense Secretary Donald Rumsfeld approved in December 2002.” (The list was later rejiggered not because of any qualms Rumsfeld had but due to complaints from military officers about the severity of the methods suggested. The present list of approved techniques remains classified, but will undoubtedly soon be leaked to the press.)
The above can be traced back farther yet. According to “documents, read to The [Los Angeles] Times by two sources critical of how the government handled the Lindh case,” writes journalist Richard Serrano, “After American Taliban recruit John Walker Lindh was captured in Afghanistan, the office of Defense Secretary Donald H. Rumsfeld instructed military intelligence officers to ‘take the gloves off’ in interrogating him In the early stages, his responses were cabled to Washington hourly, the new documents show What happened to Lindh, who was stripped and humiliated by his captors, foreshadowed the type of abuse documented in photographs of American soldiers tormenting Iraqi prisoners at Abu Ghraib.”
This, of course, takes us not only to the top of the administration, but back to the brink of the — if I dare put it this way — Ur-moment in the setting up of what would become our offshore mini-gulag, those months right after the 9/11 attacks when the Bush administration began to set their system in place on the fly and, as Suzanne Goldenberg of the British Guardian reported recently, on key issues without initially even consulting White House or Pentagon lawyers.
“In one instance, President George Bush’s military order of November 13 2001, which denies prisoner-of-war status to captives from Afghanistan and allows their detention without charge or access to a lawyer at Guantánamo, was issued without any consultations with Pentagon lawyers, a former Pentagon official said The military order issued by Mr Bush in November 2001 was the first such directive since the second world war, and the administration’s failure to seek the Pentagon’s advice on what would emerge as the entire system of detention at Guantánamo surprised Pentagon officials.”
Add it all up — only what’s been revealed so far — and you have a global system of injustice and torture, purposely mounted in the moral and legal darkness, beyond the reach or oversight of anyone but the President, vice-president, secretary of defense and associated officials, meant to extract information (and take revenge), meant as in Kafka’s fictional penal colony to write the sentence these men had passed on the bodies of America’s captives.
And talk about paper trails! If you need any evidence of the combination of arrogance, incompetence, and plain stupidity of the Bush administration, it now sits unavoidably before our eyes. Didn’t they know anything about deniability? Didn’t they know that you can get so much done without committing anything to paper? Didn’t they know that you can signal what you want from the top without issuing orders, making direct demands, or demanding supporting opinions on paper?
Note two things here: That almost all of the above, this whole little global shop of horrors, is already documented — quite literally in papers pouring out of the bowels of this administration. These documents are leaking daily from an administration that seems to have split open along many angry rift lines. The British Telegraph this week, writing of the leaking of a legal document on torture to the Wall Street Journal commented, for example:
“The leak appears to be part of an extraordinary civil war in the Pentagon between civilian officials and uniformed officers appalled by what they have described as moves by political appointees to shroud the war on terrorism in an ‘environment of legal ambiguity.'”
Some in the military, the intelligence community, the State Department, administration legal offices, and possibly even the Justice Department opposed the creation of our mini-gulag and the kinds of interrogations and conditions planned for it; some simply feared what the illegality might do to them or their careers, including evidently Joint Chiefs of Staff Chairman Gen. Richard Myers who fretted that he might become “a target for prosecution under laws governing prisoner treatment”; some are undoubtedly settling scores; others protecting tattered reputations; but it’s now close to open season on the administration from within.
Only today, the Los Angeles Times reported that, in a nearly unprecedented act in our country, 26 ex-military and senior diplomatic officials, “several appointed to key positions by Republican Presidents Ronald Reagan and George H.W. Bush, plan to issue a joint statement this week arguing that President George W. Bush has damaged America’s national security and should be defeated in November.” And retired officials almost invariably are speaking for larger constituencies within the government — all those potential leakers and mutterers — who fear speaking out publicly themselves.
Addressing an Asian security conference on the administration’s “war on terror,” Donald Rumsfeld recently commented : “[T]he reality is that today we remain closer to the beginning of this struggle than to its end.” The same might be said of the uncovering of responsibility for our own global terror system. There will be so much more to learn. Already, when it comes to Abu Ghraib, Iraq, and Afghanistan, the Pentagon keeps heaping investigations on top of one another, each subsequent one led by a figure with a higher rank and so more capable of investigating responsibility at higher levels, and I think it can be said with certainty that this will only get worse — worse probably than anything we now imagine. After all, to take but the smallest of examples, CBS news reports that “of the 20 U.S.-run jails in [Afghanistan], the Red Cross has only been allowed to visit one in Kabul. Now one in Kandahar is being opened.” Imagine what’s been happening at those other 18.
A world of tortured definitions
Here’s what’s clear. In the wake of the 9/11 attacks, the “tough guys” of Bush’s world promptly battened down the hatches and began preparing for the war, and warfare state, of their dreams. Using the analogy of the almost four-decade-long Cold War, which was their lifetime experience (and with movie images of World War II dancing in their heads), they announced that we were in a global war not against any state (though they were already itching to hit Saddam’s Iraq), but against “terrorism” itself, an amorphous force — actually, of course, a tactic employed by scattered bands of Islamic fanatics (some initially funded by men in this administration back when we were fighting the Soviets by proxy in Afghanistan). This new “war,” they announced with a certain élan and self-satisfaction would, like the previous cold one, last decades if not a lifetime. With Americans in shock and fearful, they then began planning a no-holds-barred, bring-’em-on style of warfare filled with acts of pitiless, unilateral vengeance to be launched by the most powerful state on the planet in the way of which nothing should get.
This was a war to be fought, to use a common Cold War catchphrase, “in the shadows,” and the shadows would soon enough include a global imprisonment system that stretched from holding cells on aircraft carriers to facilities in Afghanistan to Saddam’s old prisons to Guantanamo to military brigs in the United States and unnamed jails in “friendly” foreign countries. In those shadows, beyond the eyes of anyone, they had every intention of employing the sort of tactics that they imagined would break the back of terrorism. These acts of “information extraction” would be torture — terror, that is — by another name or no name at all.
Looking back, it’s curious how much of this was a war of words, a redefinitional journey involving linguistic and legalistic contortions of the most remarkable sorts. The first of these contorted definitions was of “war” itself. We did not actually declare war. After all, who was war to be declared against? We were simply defined as being “at war.” And from this, a series of other definitions followed. Perhaps the most important had to do with the people captured in this “war.”
It might seem apparent that, having declared yourself at war, the people you thereafter captured might indeed be prisoners of war. But this presented a problem since the rights of POWs were so clearly defined internationally in treaties signed by the U.S. government. So the administration simply redefined those captured in this redefined war as “unlawful combatants” or “illegal combatants.” This and other terms used for them came out of a new Devil’s dictionary; for once we had defined them thusly, they could then enter our offshore world of imprisonment — at least in the minds of Bush administration officials — as the sorts of captives to whom a whole new series of definitions could be applied.
The third definitional problem was where to hold these prisoners, so that the holding itself (without charge or trial, potentially to eternity) could not be challenged either by the prisoners themselves through any legal representation or through the courts of our own country. The administration needed a place where it could publicly practice its new definitional privacy — and that turned out to be our military base at Guantanamo, which was redefined for the purposes of the moment as under “Cuban sovereignty,” though this was obviously a brazen fiction. But even this wasn’t satisfactory for them. Guantanamo, off-limits as it was, still turned out to be far too “public” for what they planned to do to their “highest value” captives and so, for them, they developed a special, CIA-run system of imprisonment that stepped beyond definition itself. As Human Rights Watch puts it in an invaluable recent report on our global torture system:
“Among the most disturbing cases, perhaps unprecedented in U.S. history, are the detainees who have simply been ‘disappeared.’ Perhaps out of concern that Guantánamo will eventually be monitored by the U.S. courts, certainly to ensure even greater secrecy, the Bush administration does not appear to hold its most sensitive and high-profile detainees there. Terrorism suspects like Khalid Sheikh Mohammed, accused architect of the September 11 attacks, and Abu Zubaydah, a close aide of Osama bin Laden, are detained by the United States instead in ‘undisclosed locations,’ presumably outside the United States, with no access to the ICRC, no notification to families, no oversight of any sort of their treatment, and in most cases no acknowledgement that they are even being held. Human Rights Watch has pieced together information on 13 such detainees, apprehended in places such as Pakistan, Indonesia, Thailand, Morocco, and the United Arab Emirates, who have ‘disappeared’ in U.S. custody.”
At the same time, the administration was attempting to redefine presidential power in such a way that the once normal Congressional and court checks and balances of an American republic no longer applied. In his power as commander-in-chief (again note that all other redefinitions were based on the redefinition of “war”), the President was, in various legal briefs meant for the highest officials in this administration, pronounced to be beyond any control by Congress or the courts in his acts. (See the initial quote above.)
Finally, having redefined the nature of war, the powers of the president, the nature of captivity, and the places of imprisonment, it was the most natural thing in the world to redefine “information extraction” within such a system so that neither international treaties like the Geneva Conventions, nor congressionally passed laws, nor the Constitution itself was applicable to them. In this sense, from the earliest days after the 9/11 attacks, the Bush administration was focused on, above all else, setting up a global torture system by another name.
Much of this has recently become clearer as a series of internal documents produced by White House, Pentagon, and Justice Department lawyers have leaked out in recent weeks. To offer a Vietnam analogy, you might say that in the Vietnam era, The Pentagon Papers, that revelatory secret study ordered up by Secretary of Defense Robert McNamara and slipped to the New York Times by one brave whistleblower, Daniel Ellsberg, were the private, confessional equivalent of liberal guilt over the war; in the Bush era, these unbelievable lawyers’ memos, some also ordered up in the privacy of the administration by the present Secretary of Defense, are the neocon equivalent of a (legalistic) guilty conscience. They are, in some perverse fashion, deeply confessional documents, and in the future, they will read that way.
There were two parallel struggles here: One was to establish the war they wanted to fight and this they largely did before they turned to the lawyers; the other was to clear the decks legally for it. This week — even while Ronald Reagan ruled — Jess Bravin of the Wall Street Journal produced a hard-hitting piece based on one of these leaked documents that began a process not likely to go away soon. He led off:
“Bush administration lawyers contended last year that the president wasn’t bound by laws prohibiting torture and that government agents who might torture prisoners at his direction couldn’t be prosecuted by the Justice Department. The advice was part of a classified report on interrogation methods prepared for Defense Secretary Donald Rumsfeld after commanders at Guantanamo Bay, Cuba, complained in late 2002 that with conventional methods they weren’t getting enough information from prisoners at its core is an exceptional argument that because nothing is more important than ‘obtaining intelligence vital to the protection of untold thousands of American citizens,’ normal strictures on torture might not apply. The president, despite domestic and international laws constraining the use of torture, has the authority as commander in chief to approve almost any physical or psychological actions during interrogation, up to and including torture, the report argued.”
As Bravin reported:
“The report was compiled by a working group appointed by the Defense Department’s general counsel, William J. Haynes II. Air Force General Counsel Mary Walker headed the group, which comprised top civilian and uniformed lawyers from each military branch and consulted with the Justice Department, the Joint Chiefs of Staff, the Defense Intelligence Agency and other intelligence agencies. It isn’t known if President Bush has ever seen the report. A military lawyer who helped prepare the report said that political appointees heading the working group sought to assign to the president virtually unlimited authority on matters of torture — to assert ‘presidential power at its absolute apex.'”
Though the report has now been much quoted, it should be read in full. Its flavor can hardly be grasped in tidbits. It may, in fact, be one of the most tortured “legal” pieces ever written — certainly ever written in a democracy — on the subject of redefining acts of inhumanity and torture as something other than acts of inhumanity and torture. (If your computer can handle pdf files, you can click here to find it.) In it, Orwell’s “doublethink” meets the lawyers and judges of Kafka’s The Trial head on, revealing a dark landscape of legalistic legerdemain.
The report had two main purposes, as best I understand it — to place presidential power (in the form of the powers of the commander-in-chief to prosecute war) outside any legal boundaries whatsoever, thus removing from George Bush and his subordinates of any responsibility for acts he may have ordered committed; and to redefine torture so narrowly that it becomes the definitional property of the torturer.
It’s worth spending a little time with some of this document just to get a feel for it. The lawyer-authors, for instance, expend much effort acting as if they were part of a panel for a new edition of some dictionary (“The word ‘profound’ has a number of meanings, all of which convey a significant depth. Webster’s New International Dictionary 1977 [2nd ed. 1935 defines profound as…]”) and, where necessary, they don’t hesitate to take up the role of psychiatrist either. “We likewise think,” they write at one point, considering what might disrupt “profoundly the senses or personality” and so be considered torture, “that the onset of obsessive-compulsive disorder behaviors would rise to this level… Moreover, we think that pushing someone to the brink of suicide [which could be evidenced by acts of self-mutilation], would be a sufficient disruption of the personality to constitute a ‘profound disruption.'”)
Their purpose in each case is to narrow drastically some previous legal definition of torture. They spend much time, for instance, considering how to define various parts of the well-accepted phrase “severe physical or mental pain or suffering,” always emphasizing the word “severe” and then defining it in the most severe possible way:
“In order to prove ‘severe mental pain or suffering,’ the statute requires proof of ‘prolonged mental harm’ that was caused by or resulted from one of four enumerated acts… [T]he development of a mental disorder such as posttraumatic stress disorder, which can last months or even years, or even chronic depression… might satisfy the prolonged harm requirement… [I]f a defendant [interrogator] has a good faith belief that his actions will not result in prolonged mental harm, he lacks the mental state necessary for his actions to constitute torture. A defendant could show that he acted in good faith by taking such steps as surveying professional literature, consulting with experts, or reviewing evidence gained from past experience… Because the presence of good faith would negate the specific intent element of torture, good faith may be a complete defense to such a charge.”
In other words, the harm to a prisoner from what might ordinarily be considered acts of inhumanity and torture must be “severe” indeed — proof of that severity could even take several months to develop — and in addition it would have to be proved that the interrogator actually meant to create a state of, say, posttraumatic stress disorder. In other words, the act of torture is not, in fact, torture if the intent to torture is not there — and, since it’s a matter of “good faith,” the only person who could affirm that torture had taken place would, in essence, be the torturer.
But even that’s not enough. According to this administration’s best legal minds, even knowing in a general sense what ill results might come from your acts does not necessarily make you a torturer, not if you did not mean to cause such results. What must be proven is “specific intent to cause pain,” a phrase they then spend much space redefining. They write:
“As a theoretical matter, therefore, knowledge alone that a particular result is certain to occur does not constitute specific intent… if causing such harm is not his objective, he lacks the requisite specific intent… A defendant is guilty of torture only if he acts with the express purpose of inflicting severe pain or suffering on a person within his custody or physical control… Where a defendant acts in good faith, he acts with an honest belief that he has not engaged in the proscribed conduct.”
This is, of course, but the briefest glimpse into the bizarre and twisted definitional thinking that fills this 56-page document, much of it focused on the problem of potential future “prosecutions arising out of the exercise of the president’s express authority as Commander-in-Chief” to create what is essentially a torture regime abroad. (Strangely enough, in the light of day this dark document reads like a witness for the prosecution in any future war-crimes-style trials of the members of this administration.) Just to give a tiny flavor of this aspect of the document, here’s an almost random passage:
“Any effort by Congress to regulate the interrogation of unlawful combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President. There can be little doubt that intelligence operations, such as the detention and interrogation of enemy combatants and leaders, are both necessary and proper for the effective conduct of a military campaign. Indeed such operations may be of more importance in a war with an international terrorist organization than one with the conventional armed forces of a nation-state, due to the former’s emphasis on secret operations and surprise attacks against civilians. It may be the case that only successful interrogations can provide the information necessary to prevent the success of covert terrorist attacks upon the United States and its citizens. Congress can no more interfere with the President’s conduct of the interrogation of enemy combatants than it can dictate strategy or tactical decisions on the battlefield. Just as statutes that order the President to conduct warfare in a certain manner or for specific goals would be unconstitutional, so too are laws that seek to prevent the President from gaining the intelligence he believes necessary to prevent attacks upon the United States.”
Finally, the authors of this document invoke the “superior orders” doctrine (made famous at Nuremberg) commenting that:
“In sum, the defense of superior orders will generally be available for U.S. Armed Forces personnel engaged in exceptional interrogations except where the conduct goes so far as to be patently unlawful.”
Of course, that wonderfully turned phrase “exceptional interrogations” means “torture” (except that, by this point in the document, torture itself no longer means torture); and while I’m no lawyer, the concept of “patently unlawful” seems a curious one to me. I’d like to see that brought into an everyday court of law. (The defendant throws himself on the mercy of the court: “I did it, judge, and it was definitely unlawful, but I plead innocent since it was not patently so.”)
The Wall Street Journal “opinion” is but one of a series of internal memorandums we now know about, written between January 2002 and early this year, which seem to have much in common. For instance, in an earlier legal memorandum, written in August 2002 by the Justice Department for the CIA, “signed by Assistant Attorney General Jay S. Bybee,” addressed to White House counsel Alberto Gonzalez, and leaked to the Washington Post, the writers also chewed over the issue of how much pain constitutes torture. They wrote that the “inflicting [of] moderate or fleeting pain does not necessarily constitute torture. Torture, the memo says, ‘must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.'” (Otherwise, assumedly, you just scream.) Similarly, the writers suggest: “For purely mental pain or suffering to amount to torture it must result in significant psychological harm of significant duration, e.g., lasting for months or even years.”
Let’s remember that of the legal minds responsible for these “opinions,” Bybee is now a judge on the U.S. 9th Circuit Court of Appeals in San Francisco; the Defense Department’s general counsel, William J. Haynes II has been nominated to be an appellate judge, in the U.S. 4th Circuit in Richmond, Va.; and John Yoo, author of some of the earliest of these memorandum, has returned to a professorship at the University of California, Berkeley, where, in response to student protests, he said: “I think the calls for my resignation are misguided and don’t show an understanding of the job of a lawyer.”
And in this he’s probably right. As the CIA produced the kited “intelligence” the administration needed to go to war in Iraq, so its various legal groups produced the memorandum it needed — again and again and again — to imprison beyond the rule of law and torture those whom it pleased. As Phillip Carter, a former U.S. Army officer, put it in Slate: “[N]o amount of caveating can save the latest Defense Department memorandum on the legality of torture from being construed as what it is: a cookbook on how to conduct illegal torture and get away with it.”
These are, in fact, documents of shame, symbolic of a kind of bureaucratic lawlessness let loose at the heart of our government. They are intent on creating a pseudo-legal basis for replacing the rule of law with the rule of a commander-in-chief. As Robert Kuttner put it in the Boston Globe, “For nearly three years, the Bush administration has resorted to the most preposterous fictions to define either locales or categories of people to whom the law does not apply. If you connect the dots, the torture at Abu Ghraib is part of a larger slide toward tyranny as the Bush administration tries to exempt itself from the rule of law.” As justifications for torture, these are the sorts of documents one can imagine finding in the files of some grim third world dictatorship or maybe the former Apartheid regime of South Africa. As the Washington Post editorial page put it recently, speaking of the authors of such memos and their masters, “Theirs is the logic of criminal regimes” Were it ever to be made the law of the land, our republic, such as it is, would quite literally be ended and we would face some kind of one-party dictatorship. Were its definitions of torture ever made the law of the land, every torturer on earth would shout hosannas to it.
[Coming Tuesday, Part II: On our global torture system, its history, future presidential defenses, and the rise of the Nazi analogy]