[News] The 13 people who made torture possible
Anti-Imperialist News
news at freedomarchives.org
Sun Jun 14 11:30:30 EDT 2009
http://www.salon.com/news/feature/2009/05/18/torture/print.html
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
<http://www.salon.com/news/feature/2007/06/21/cia_sere/print.html>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)
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
weeks,
<http://www.usdoj.gov/olc/warpowers925.htm>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
<http://blog.washingtonpost.com/cheney/chapters/chapter_1>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
<http://harpers.org/archive/2008/07/hbc-90003234>badgering
the CIA's inspector general when he reported many
problems with the interrogation program, and by
<http://www.washingtonpost.com/wp-dyn/content/article/2005/07/22/AR2005072201727.html>lobbying
Congress to legally protect those
<http://harpers.org/archive/2008/07/hbc-90003234>who had tortured.
Most shockingly,
<http://www.thewashingtonnote.com/archives/2009/05/the_truth_about/>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
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.
<http://judiciary.house.gov/hearings/printers/110th/43152.PDF>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 --
<http://www.google.com/url?sa=t&source=web&ct=res&cd=2&url=http%3A%2F%2Fwww.washingtonpost.com%2Fwp-dyn%2Fcontent%2Farticle%2F2007%2F05%2F15%2FAR2007051501032.html&ei=qpj4SZ3hOJOMtgfm76ijDw&usg=AFQjCNHdSzmOeNE2gdmnuyztCOyMTAVpRw>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,
<http://www.google.com/url?sa=t&source=web&ct=res&cd=4&url=http%3A%2F%2Fbooks.google.com%2Fbooks%3Fid%3D3uFre3VPSz8C%26dq%3Dterror%2Bpresidency%26printsec%3Dfrontcover%26source%3Dbn%26hl%3Den%26ei%3DSKv3SaiyJ4vSNLCavMAP%26sa%3DX%26oi%3Dbook_result%26ct%3Dresult%26resnum%3D4&ei=SKv3SaiyJ4vSNLCavMAP&usg=AFQjCNGOx4JRXBxsmjz022zz_YNuYs_hag>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)
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."
<http://news.lp.findlaw.com/hdocs/docs/torture/gnzls12502mem2gwb.html>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
<http://www.usdoj.gov/oig/special/s0805/final.pdf>"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)
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
Director<http://www.amazon.com/Dark-Side-Inside-Terror-American/dp/0385526393>."
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
<http://stream.luxmedia501.com/?file=clients/aclu/olc_08012002_bybee.pdf&method=dl>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)
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
<http://www.youtube.com/watch?v=Prxin-Lj5Ks>"conveyed
the authorization") for the first known
officially sanctioned use of torture -- the CIA's
interrogation of Abu Zubaydah --
<http://intelligence.senate.gov/pdfs/olcopinion.pdf%5D>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)
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
<http://www.unhchr.ch/html/menu3/b/h_cat39.htm>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."
<http://stream.luxmedia501.com/?file=clients/aclu/olc_08012002_bybee.pdf&method=dl>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.
<http://www.nytimes.com/2009/04/23/opinion/23soufan.html>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
<http://whitehouse.senate.gov/newsroom/opeds/oped/?id=d63ccaa8-afb9-454c-a97f-17dc14730558>specifically
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
him
<http://judiciary.house.gov/hearings/pdf/Yoo080626.pdf>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,
<http://leahy.senate.gov/press/200904/042909b.html>he
received such an appointment. Of particular
concern is the timing of Bybee's approval of the
torture techniques.
<http://stream.luxmedia501.com/?file=clients/aclu/olc_08012002_bybee.pdf&method=dl>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,
<http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf>OLC
approved waterboarding. One of the documents in
that packet identified these actions as torture,
and stated that
<http://www.washingtonpost.com/wp-srv/nation/pdf/JPRA-Memo_042409.pdf>torture
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.
Haynes
<http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf>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
<http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf>in
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.
<http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf>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
<http://www.salon.com/news/feature/2008/12/01/graner/>in
the Charles Graner case and the case of
<http://news.bbc.co.uk/2/hi/americas/7398953.stm>"20th
hijacker" Mohammed al-Qahtani. Rumsfeld also
<http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf>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
<http://stream.luxmedia501.com/?file=clients/aclu/olc_08012002_bybee.pdf&method=dl>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,
<http://www.fas.org/irp/congress/2007_hr/rizzo.pdf>Rizzo
provided a description of waterboarding using one
standard, while the OLC opinion described
<http://emptywheel.firedoglake.com/2009/04/21/the-sasc-smoking-gun-on-waterboarding/>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,
<http://www.washingtonpost.com/wp-srv/nation/pdf/JPRA-Memo_042409.pdf>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
<http://www.nytimes.com/2005/11/09/politics/09detain.html?_r=1&pagewanted=1>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.
<http://stream.luxmedia501.com/?file=clients/aclu/olc_05102005_bradbury46pg.pdf&method=dl>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,
<http://stream.luxmedia501.com/?file=clients/aclu/olc_05102005_bradbury_20pg.pdf&method=dl>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 --
<http://stream.luxmedia501.com/?file=clients/aclu/olc_05302005_bradbury.pdf&method=dl>"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)
George W. Bush
While President Bush maintained some distance
from the torture for years --
<http://www.youtube.com/watch?v=01s7rU8kIwI>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,
<http://www.nytimes.com/2006/09/06/washington/06bush_transcript.html?_r=1&ei=5070&en=02a7d2e2edf2ee45&ex=1190260800&pagewanted=all>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
<http://www.google.com/url?sa=t&source=web&ct=res&cd=3&url=http%3A%2F%2Fwww.pegc.us%2Farchive%2FWhite_House%2Fbush_memo_20020207_ed.pdf&ei=b1f6SdrAHYGmNYfxpLUE&usg=AFQjCNEnqX7mt9011m6m6jxHJfnGvXAM2A>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
<http://intelligence.senate.gov/pdfs/olcopinion.pdf%5D>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.
<http://www.house.gov/apps/list/press/ca36_harman/Jan_3.shtml>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
<http://ftp.fas.org/irp/offdocs/nsdd286.htm>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.
<http://www.youtube.com/watch?v=ijEED_iviTA>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.
-- By Marcy Wheeler
Freedom Archives
522 Valencia Street
San Francisco, CA 94110
415 863-9977
www.Freedomarchives.org
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