Greenberg and Dratel, 37 Questions for Donald Rumsfeld

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Pick a week, any week, and you can now be guaranteed that yet more gruesome news will seep out about the global torture regime the Bush administration has set up around the world. Soon the leakage may reach tsunami levels in the press. Of course, last week was a special case because White House Legal Counsel and presidential crony Alberto Gonzales testified before the Senate as the attorney-general designate and managed to stonewall endlessly on the question of administration torture policy and yet, somehow, implicitly reaffirm some of the administration’s worst positions on torture. Now, as attorney general, would you believe the president has the authority to exercise a commander-in-chief override and immunize acts of torture?” asked Senator Leahy. And Gonzales responded: “[That’s] a hypothetical that’s never going to occur This president has said we’re not going to engage in torture under any circumstances, and therefore that portion of the opinion was unnecessary and was the reason that we asked that that portion be withdrawn.” In other words, no comment — or a classic case of torture as tautology. Yes, Gonzales insisted to the senators, he was against torture. The only hitch was — what exactly was torture? (As he told one senator, he’d have to get back to us on that.) For an administration that, in one of its legal memos, had already put the power to define torture into the hands of the torturer, it wasn’t so hard to be against acts of “torture” — as long as the dictionaries were theirs.

In the meantime, last week the well-respected New England Journal of Medicine and the Los Angeles Times published pieces by two legal experts, Gregg Bloche and Jonathan H. Marks, offering us news about the role physicians are playing in our Bermuda Triangle of injustice — both at Abu Ghraib prison in Iraq and at Guantanamo. In both places, thanks to former Guantanamo commander Maj. Gen. Geoffrey Miller and his team, who had the urge to “fuse” all prison functions in pursuit of the “interrogation mission,” each place ended up with “Behavioral Science Consultation Teams,” aka “Biscuits” in the trade, made up of psychologists and psychiatrists.

As Bloche and Marks put it, “Not only did caregivers pass clinical data to interrogators, physicians and other health professionals helped craft and carry out coercive interrogation plans.” And now the Pentagon, through Deputy Assistant Secretary of Defense for Clinical and Program Policy David Tornberg, claims that there isn’t “‘a doctor-patient relationship in the traditional sense between a military healthcare provider and an enemy prisoner of war Medical information will not be protected to the extent it is military relevant’ A medical degree, Tornberg told us, isn’t a ‘sacramental vow.’ When a doctor participates in interrogation, ‘he’s not functioning as a physician,’ and the Hippocratic ideal of fidelity to patients is beside the point.” Uh-huh. You see, it’s all just a matter of definition.

Usually, incriminating documents on the crimes and misdemeanors of any government or administration await ultimate defeat (and sometimes conquest) to see the light of day, or at least, as in the case of the Nixon administration documentation that came out during the Watergate affair, political defeat. Only three years into the war on terror, however, with the Bush administration still riding relatively high in the saddle, the paper trail already made public on torture, abuse, and other crimes against humanity is unprecedented — and it leads right up to the top. Karen J. Greenberg, Director of the Center on Law and Security at NYU School of Law, and attorney Joshua L. Dratel, President-elect of the New York State Association of Criminal Defense Lawyers and civil lawyer for Australian Guantanamo detainee David Hicks, have now put together a massive book of these documents (just being published this week), The Torture Papers: The Road to Abu Ghraib. It’s the most comprehensive record yet of memos and reports in which the Bush Administration developed its policies on the treatment of prisoners and on torture. It also includes testimony from interrogators and detainees on abuses at Abu Ghraib and Guantanamo, and reports on prisoner abuses done by the International Red Cross and other organizations. It will be a must-have reference work for any journalist or historian writing on the subject or, for that matter, for any of us. And it’s equipped Greenberg and Dratel well to interrogate Donald Rumsfeld. Tom

Interrogating Donald Rumsfeld
37 Questions Congress Should Ask the Secretary of Defense on Administration Torture Policies
By Karen J. Greenberg and Joshua L. Dratel

The “torture memos,” as they have come to be known, reveal much about the current administration. They point to a level of secrecy matching, or even surpassing, any sought or achieved by the executive branch in prior eras, even during wartime. They point to a lack of concern for accountability that veers far from previously acknowledged limits on unchecked executive power. They deliberately disregard, even nullify, the balance-of-powers doctrine that has defined the United States since its inception. Essentially, much of what has been put in place by the Bush administration in the wake of 9/11 has relied on the fear of terror as a means to establish a new doctrine of state; it is a doctrine that, before the attacks on the World Trade Center and the Pentagon, had lingered in the outer corridors of power. Much of the Patriot Act, for instance, had already been drafted before 9/11; and the proposal for the Department of Homeland Security was also in draft form at that time. So, too, were plans for a war in Iraq.

The torture memos developed inside the White House by a task force of lawyers headed by presidential confidant and White House Legal Counsel Alberto Gonzales are important, and not just as evidence of a policy that disregards human rights and reciprocity in the treatment of soldiers, civilians, and prisoners. The torture memos are also — perhaps primarily — important because they reveal the most basic attitudes with which the administration greets the Congress, the courts, the American public, and the world at large.

One of the chief figures in turning legal questions on torture into policy in the matter of the treatment of prisoners has been Secretary of Defense Donald Rumsfeld, who oversaw the approval of harsh interrogation methods in 2002 and who became the personally responsible party for approving or disapproving the use of coercive interrogation and “category three” torture after the Spring of 2003. It seems only apt and fitting, then, that he, as well as Alberto Gonzales, be brought before Congress and asked questions about this policy and his role in it.

Based on a careful reading of the hundreds of pages of “torture memos” that poured out of the White House, the thousands of pages of military reports, investigations, and original documents that have emerged from Abu Ghraib prison in Iraq, as well as the flood of recent FBI e-mails and prisoner complaints that have emerged from Guantanamo prison in Cuba, we might — as a lawyer and an historian who have been working in this area for the last two years — suggest the following series of questions for Congress:

1. Does Torture Work? Given the detailed attention shown in the White House memos to describing three levels of interrogation (from questioning to physical abuse) to be applied in the war on terror, is there an underlying assumption that torture in fact really works? That it is more effective than ordinary means of questioning prisoners? And, if so, what does it work to produce? Have you considered whether it is a means of venting frustration or a means of obtaining reliable information? Is there clinical, verifiable evidence that torture produces better information more quickly and more accurately than other methods of interrogation? Did your discussions of torture involve consulting experts in Israel, the United Kingdom, Egypt, and elsewhere? If so, what did those sources have to say in recommending torture? Or was the administration convinced of the efficacy of torture before it began drawing up its legal documents?

2. Assuming, for a moment, that torture is indeed effective, what is the difference between this conflict, and these detainees, and previous conflicts and prisoners? After all, the rationale that torture is necessary to save lives, if true, applies to any war. Surely the torture of German and Japanese soldiers — particularly officers — in World War II could have yielded information that might have “saved lives.” Wouldn’t this then apply no less to U.S. soldiers and officers — either in or, as in the case of Special Forces troops, out of uniform — captured by the enemy? Indeed, why would it not apply to any situation in which lives are in the balance: cigarette manufacturers, polluters, ordinary criminals? Wouldn’t torturing them for information “save lives”?

3. Why was one of the first tasks of your administration finding a place — Guantanamo Bay — that was meant to be beyond the reach of the courts? Do you fear review by the courts? Why do you dismiss the role of the courts and ordinary law enforcement in eliciting information from prisoners in the war on terror? Isn’t it possible that the art of interrogation, practiced by law enforcement officers and professional lawyers, might in fact elicit more important and more accurate information in assessing the motives, networks, and plans of terrorists than, say, dogs at Guantanamo Bay or waterboarding in some CIA holding area? What exactly was it you felt it was so important to keep secret from the courts?

4. In the war on terror, do you see the Department of Justice as essentially an adjunct of the Department of Defense? Is there an expectation that what the Pentagon deems necessary in the war on terror and the war in Iraq will simply be justified after the fact by the Justice Department? What is your response to observers who have noted that the lawyers in the White House’s Office of Legal Counsel acted more like corporate lawyers than protectors of the U.S. Constitution; that they followed the corporate model of providing arguments and justifications for their superiors — in this case, justifying secrecy, torture, and the disregard of the Geneva Conventions — rather than approaching them objectively and independently as matters of legal inquiry?

5. Do you think that terrorists and alleged terrorists deserve to be tortured as a form of punishment? In a November 27, 2002 memo on acceptable interrogation methods, you personally handwrote the following comment: “I stand for 8-10 hours a day. Why is standing [as a counter-resistance technique] limited to 4 hours?” Is there a sense that the prisoners in Guantanamo, though not yet tried, let alone convicted, deserve the punitive treatment they receive, including acts that may be outlawed internationally and in domestic law? Do you consider them, by virtue of their potential association with terrorists, to deserve fewer rights than others?

6. Can you address the timing of the development of a Bush administration torture policy and your decision to step away so quickly from the Geneva Conventions to which we are signatories? Why, as early as the fall of 2001, before you even had prisoners who might have been available for torture, was the Administration so willing to consider torture as a practice? Had such a policy been privately discussed prior to September 11th and already deemed necessary to the security of the United States, and if so, what was the rationale for considering such a policy? What was your basis for concluding that traditional methods consistent with international law were a failure?

7. Why have you not consulted Congress on the question of torture? What role, if any, do you think Congress should play in overseeing either the treatment of military prisoners or the military commissions you are planning to set up to try them? In the August 2002 Memo from the Office of Legal Counsel, Congress, it was claimed, did not have the power to prohibit torture if the President, acting as Commander in Chief, deemed it necessary — do you still agree with this, as Alberto Gonzales seems to, given his recent Senate testimony? Do you really think that, in times of war, the President has the power to do whatever he wants?

8. Why did the complaints from detainees like David Hicks and the Tipton Three, NGOs, the International Red Cross, military whistleblowers, and other governments regarding the mistreatment of detainees fall on deaf ears for so long? The recently released FBI memoranda, and the recently unsealed court filings by Guantanamo detainees establish the existence of torture, abuse, and mistreatment beyond any doubt. Why did Pentagon investigations (of which there have now been so many) not uncover this abuse, and why didn’t the investigators pay any attention to the claims made by knowledgeable outside parties?

9. If Alberto Gonzales were not facing confirmation hearings, would the government’s position on torture have been revised, as it was just before he testified? Who or what precipitated the administration to suddenly change its definition of torture? How long has such a change been in the works? Who was responsible for that change, and who was involved in crafting the new definition(s)?

Memos and reports of special interest in relation to the above questions:

* September 25, 2001 memo from John Yoo, Assistant Attorney General, U.S. Department of Justice, Office of Legal Counsel, to Timothy Flanigan, Deputy Counsel to the President

* December 28, 2001 memo from Patrick F. Philbin, Deputy Assistant Attorney General, and John Yoo to William J. Haynes, General Counsel, Department of Defense

* August 2002 memo from Jay S. Bybee, Assistant Attorney General to Alberto Gonzalez, Counsel to the President

* November 27, 2002 memo on “Counter-Resistance Techniques” from William J. Haynes II to Donald Rumsfeld

* Affidavit filed by David Hicks, prisoner in Guantanamo, in the matter of Hicks vs. Bush

* February 2004 International Red Cross Report

* March 2004 Taguba Report

Karen J. Greenberg is the Director of the Center on Law and Security at NYU School of Law and the editor of the NYU Review of Law and Security. Joshua L. Dratel is a criminal defense attorney in New York City who represents David Hicks, an Australian detainee held at Guantanamo Bay. He is the President-elect of the New York State Association of Criminal Defense Lawyers. The opinions reflected in this article are those of Mr. Dratel and Ms. Greenberg and do not reflect those of any organization. Ms. Greenberg and Mr. Dratel have co-edited The Torture Papers: The Road to Abu Ghraib, published this week by Cambridge University Press. All of the above memos can be found in their book.

Copyright 2004 Karen J. Greenberg and Joshua L. Dratel