[News] The 13 people who made torture possible

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Sun Jun 14 11:30:30 EDT 2009


The 13 people who made (sic) torture possible

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.

By Marcy Wheeler

May. 18, 2009 |

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 
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)

Dick Cheney

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 
<http://www.soaw.org/type.php?type=8>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 
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 
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 
the CIA's inspector general when he reported many 
problems with the interrogation program, and by 
Congress to legally protect those 
<http://harpers.org/archive/2008/07/hbc-90003234>who had tortured.

Most shockingly, 
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

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. 
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 -- 
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, 
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)

Alberto Gonzales

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." 
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 
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)

George Tenet

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 
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 
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)

Condoleezza Rice

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 
the authorization") for the first known 
officially sanctioned use of torture -- the CIA's 
interrogation of Abu Zubaydah -- 
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)

John Yoo

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 
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." 
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. 
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 
to waterboarding and to separation of powers.

8. Jay Bybee, assistant attorney general, Office of Legal Counsel (2001-2003)

Jay Bybee

As head of the OLC when the first torture memos 
were approved, Bybee signed the memos named after 
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, 
received such an appointment. Of particular 
concern is the timing of Bybee's approval of the 
torture techniques. 
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, 
approved waterboarding. One of the documents in 
that packet identified these actions as torture, 
and stated that 
often produced unreliable results.

9. William "Jim" Haynes, Defense Department general counsel (2001-2008)

William 'Jim' Haynes

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.

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 
the abuse at Abu Ghraib.

10. Donald Rumsfeld, secretary of defense (2001-2006)

Donald Rumsfeld

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. 
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 
the Charles Graner case and the case of 
hijacker" Mohammed al-Qahtani. Rumsfeld also 
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 
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, 
provided a description of waterboarding using one 
standard, while the OLC opinion described 
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, 
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 
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. 
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 
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 -- 
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)

George W. Bush

While President Bush maintained some distance 
from the torture for years -- 
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, 
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 
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 
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. 
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 
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. 
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.

-- By Marcy Wheeler

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