In the space of a week, the torture debate in America has been suddenly transformed. The Bush administration left office resting its case on the claim it did not torture. The gruesome photographs from Abu Ghraib, it had said, were the product of “a few bad apples” and not of government policy. But the release of a series of grim documents has laid waste to this defense. The Senate Armed Services Committee’s report—adopted with the support of leading Republicans senators John McCain, John Warner, and Lindsey Graham—has demonstrated step by step how abuses on the ground in Iraq and Afghanistan had their genesis in policy choices made at the pinnacle of the Bush administration. A set of four Justice Department Office of Legal Counsel memoranda from the Bush era has provided a stomach-turning legal justification of the application of specific torture techniques, including waterboarding.
As public and Congressional calls for appointment of a prosecutor and the creation of a truth commission have proliferated, President Obama stepped in quickly to try to turn down the heat. A commission would not be helpful, he argues, and he has made plain his aversion to any form of criminal law accountability. Republicans, meanwhile, bristle with anger as they attempt to defend against the flood of new information. But, in the end, Obama’s assumption that the torture debate has run its course and that the country can now “move on,” as conservative pundit Peggy Noonan urged, may rest in some serious naïveté: Karl Rove and Dick Cheney have different ideas. They’re convinced that Bush-era torture policy is a promising political product for a party down on its luck. Its success on the political stage is just one more 9/11-style attack away.
The latest disclosures can best be grouped in terms of the destruction of a series of long-enduring myths and the emergence of some new truths.
The Broken Myths
Torture was connected to some “rotten apples,” mostly enlisted personnel from rural Appalachia who were improperly supervised.
The Senate Armed Services Committee meticulously documents the abuses that were chronicled at Abu Ghraib, Bagram Air Base, and other sites and links them directly to techniques that were approved by Secretary of Defense Donald Rumsfeld and other senior officials in the Bush administration. Even in the case of Abu Ghraib, it shows step-by-step how directions given by Rumsfeld that the harsh techniques he adopted for Guantánamo be imported to Iraq, specifically for use on high-value detainees at the Abu Ghraib facility. Among the 232-page report’s conclusions: “The abuse of detainees in U.S. custody cannot simply be attributed to the actions of ‘a few bad apples’ acting on their own. The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.
The torture techniques were derived as a last resort, only after other techniques had failed and that interrogators in the field pushed for their use.
The report shows, however, that the effort to identify and seek authority to use harsh new techniques started shortly after 9/11—that is, in 2001, well before there were any prisoners on whom they could be used. It also shows that the effort had its origin in the White House, specifically in the office of Vice President Cheney and involved a series of persons who had Cheney’s confidence.
Conversely, the report and other documents emerging since its release shows that interrogators in the field raised sharp objections to the use of the techniques and steadily questioned their efficacy. The team dealing with one prisoner, for instance, voiced the view that he had already furnished all the evidence he was likely to produce and that further waterboarding would be pointless. Nameless “higher-ups” overrode their judgment. That group might well include Cheney, who is known to have maintained a sharp interest in this particular detainee and kept on his desk a file marked “detainees” in which he collected data related to the use of torture. The Senate report documents a series of military officers who raised objections against the use of torture and insisted that their opposition be recorded. And today a further report has emerged from July 2002 (just as the OLC memos were being commissioned), in which the military’s Joint Personnel Recovery Agency (JPRA) expressly referred to the techniques which were being reverse engineered from the SERE program (that JPRA oversaw) as “torture” and insisted that if used they would not produce reliable intelligence.
Bush lawyers may have made “honest mistakes” in their legal analysis owing to the extreme pressure that existed in the immediate wake of 9/11, in which they were pressed quickly to give opinions before matters could be fully evaluated.
One of Bush’s OLC chiefs, Jack Goldsmith, makes the argument, now accepted as a mantra-like defense for the Bush-era torture lawyers, that tremendous pressure and short deadlines were to blame for their failure to properly assess the law. The torture memoranda gave seriously faulty analysis of the law, Goldsmith claims, because of this pressure-cooker environment. We should all be prepared to excuse their lapses for this reason. Goldsmith is not the most objective analyst of the question, and his adamant insistence that he was divorced from the process of giving a green light to torture appears less persuasive as time passes. But the writings of the torture memo writers, particularly of John Yoo, look suspiciously like their academic writing, in which they sought to expand presidential power and authority at the expense of the rights of the other branches. It seems more plausible to conclude just the opposite of Goldsmith’s claims, namely, that they seized upon the crisis that arose in the wake of 9/11 as an opportunity in which they could realize their ideas about limitless presidential powers in wartime.
The impulse to torture had a clear motivation: Cheney and Rumsfeld were increasingly desperate to find evidence that would support their decision to invade and occupy Iraq.
The push for application of torture techniques occurred as the Bush administration scrambled to come up with evidence to support its claims that Iraqi dictator Saddam Hussein had links to Al Qaeda or was pursuing the development of Weapons of Mass Destruction (WMD). Two major spikes in the use of the harshest techniques occurred in the weeks just before the Iraq invasion and the couple of months after the occupation of Iraq had begun. The first spike coincides with a period of difficulty with America’s principal ally, Britain, shortly following the famous Washington meeting between President Bush and Prime Minister Tony Blair in which the latter expressed concern about the lack of evidence supporting claims about a WMD program. Blair had been informed by his attorney general, Lord Peter Goldsmith, that the legal case for invading Iraq was exceedingly tenuous and badly needed to be bolstered with evidence showing an imminent threat coming out of Saddam Hussein’s Iraq. Also in this period, Vice President Cheney was doing his best to make this case by talking up evidence that proved specious—including reports of a meeting in Prague between an Al Qaeda figure and an Iraqi diplomat.
The new documents make plain that interrogators using the new harsh techniques, including waterboarding, were pushing their subjects for information that would justify the Iraq War. For instance, Major Paul Burney, a medical professional attached to interrogation efforts at Guantánamo, told investigators that “we were there a large part of the time we were focused on trying to establish a link between Al Qaeda and Iraq and we were not being successful in establishing a link between Al Qaeda and Iraq. The more frustrated people got in not being able to establish this link… there was more and more pressure to resort to measures that might produce more immediate results.” Numerous other sources involved in the interrogation effort recorded the same intense pressure to secure “results” that would justify a decision that had already been taken in Washington to invade Iraq.
In the end, Secretary of State Colin Powell was sent to the United Nations to make the case for an invasion of Iraq. The crown jewel of his evidentiary case turned on claims supplied by Ibn al-Shaykh Al-Libi that Saddam Hussein had trained Al Qaeda operatives in the use of chemical weapons. Al-Libi had been tortured using the new techniques to secure this evidence. It was subsequently determined to be false—offered up by Al-Libi to escape the torments to which he was subjected with the full understanding that this was what his interrogators wanted to hear. By curious coincidence, as Powell delivered his speech to the UN Security Council, a Judiciary Committee hearing room emptied out, and the nominee then under consideration got a free pass to confirmation to a lifetime appointment on the federal bench. His name was Jay Bybee, and more than a year later the public would learn that he had been a principal author of the torture memoranda.
The new reports make clear that torture was used to secure information to justify the invasion of Iraq, but—just as experts from the military and the FBI warned—the information proved false. America’s credibility on the international stage was seriously damaged as a result.
The torture trail started and ended in the White House.
The Bush administration went to great lengths to fabricate a narrative under which it agreed to demands from interrogators on the ground to allow the use of harsher methods, effectively “removing the shackles” on their interaction with prisoners. But the Senate Armed Services Committee report shows that the effort to introduce these techniques dates from 2001, before there were any prisoners. It also shows that these techniques emanated from the White House and specifically from the office of Vice President Cheney. Finally, it documents a protocol that was in effect governing the use of the techniques. Interrogators would propose a full program of torture techniques to be applied to an individual prisoner. This proposal would be vetted and approved by higher-ups in the CIA (including the senior CIA officials who, not coincidentally, vehemently opposed disclosure of information surrounding their own engagement), and then it would go to the White House where discussions occurred in the National Security Council. Formal sign-off occurred by National Security Adviser Condoleezza Rice, involving her lawyer, John Bellinger. President Bush and Vice President Cheney are also recorded as having been informed and having approved its use. If the torture story is therefore a tale involving a “handful of bad apples,” then, the “bad apples” were sitting at the very top of the government.
Experts advised the administration lawyers that their opinions on torture were wrong and possibly criminal in nature and the lawyers attempted to destroy evidence of this fact.
Contrary to the uninformed assertion of Washington Post columnist David Broder that the “memos on torture represented a deliberate, and internally well-debated, policy decision, made in the proper places,” the newly released documents are filled with evidence that military law experts and others repeatedly warned the Bush administration, and particularly its lawyers, that the techniques which were being introduced constituted torture and that torture was a federal crime, punishable with penalties up to capital punishment in cases in which death occurred (and it did). This helps explain why White House counsel Alberto Gonzales, in a memorandum advising President Bush to issue a determination that the Geneva Conventions did not apply, presented his fear that prosecutors in the future might bring war crimes charges against Bush administration officials (a presidential determination that Geneva did not apply would make it more difficult for the prosecutors to make their case, Gonzales reasoned).
In addition, a senior military lawyer tells me that he directly confronted one of the torture memo writers advising him that the techniques proposed would be viewed by most experts as criminal in nature. He insisted that the memo be rewritten to reflect this risk. But the memo writer refused, he states. Phillip Zelikow, a senior counselor to Condoleezza Rice at the State Department, also described a memorandum he wrote warning of risks associated with the torture memoranda. He explained last week that an extraordinary effort was launched by the Bush White House to round up and destroy all copies of his memo. Prosecutors would probably characterize all of this as reflecting mens rea—a state of guilty mind—a realization by the torture memo writers that they were engaged in a criminal act.
Why did the memo writers issue their opinions in the form that they did without signaling the risks of criminal law involved in the scheme that the White House was implementing? It’s likely that they were acting under instructions to issue “clean opinions,” which would make it easier for the White House to act and provide more effective insulation from criminal prosecution to those who received the memos. Note that both President Bush and Vice President Cheney went out of their way in their exit interviews to claim that they made their decisions in reliance on the advice of their lawyers.
The new disclosures have transformed the parameters of the debate. The Bush administration’s claims that “we do not torture” and that the problems associated with photographs from Abu Ghraib were all related to a “few bad apples” have collapsed. The fall back position urged with increasing vigor by Dick Cheney and Karl Rove is simple and includes both offensive and defensive elements. The critical top note is that torture works and keeps America safe. Cheney repeats this claim at every public appearance. He argues that the key to the Bush Administration’s avoidance of any further attacks on the United States after 9/11 was the reach to torture techniques. He claims that these techniques yielded information that allowed the U.S. to thwart attacks. But Cheney has been extremely slippery about the details of these claims.
Cheney has also filed papers with the National Archives seeking the declassification and disclosure of two CIA reports, which he notes are in a file from his office marked “Detainees.” Curiously, neither report dates from the period of heavy use of torture techniques like waterboarding—they are from a subsequent period in which information gained is probably being crunched or evaluated in an effort to prove that the application of torture yielded something useful. Critics object to Cheney’s request, but they don’t object to disclosure of information about the fruits of the program. They argue that Cheney cannot be allowed to cherry-pick the evidence as he did with intelligence relating to the Iraq War. Instead, they argue, there should be a comprehensive study of the question that reaches some results—perhaps best in the form of a commission of inquiry like the one that the congressional judiciary committee chairs, John Conyers and Patrick Leahy, have proposed.
Rove’s counterattack takes a different form. He argues, using formulations that instantly reverberated though the airwaves as dozens of Republican commentators took them up, that any effort at accountability would be a primitive act of retribution. Appearing on Sean Hannity’s show on Fox News, Rove invoked the image of “Latin American colonels in mirrored sunglasses,” claiming that any effort to investigate breaches of law would be a “criminalization of an honest policy dispute” that would undermine the fabric of American democracy.
The imagery used by Rove is particularly jarring because in fact there is a broad sense that the age of dictators in mirrored sunglasses in Latin America is passed, and key to the triumph of democracy in the hemisphere was a firm move towards the accountability of heads of state. Since 1990, 68 heads of state have faced criminal prosecution in roughly forty countries, as noted in Prosecuting Heads of State, a new book just published by Cambridge University Press. These prosecutions have demonstrated the maturity and stability of democratic systems and have helped guard the hemisphere’s democracies against extralegal overreaching by heads of state. Indeed, the most striking single case cited is the just concluded prosecution of former Peruvian President Alberto Fujimori. Confronting the terrorism of a Maoist group called Sendero Luminoso, Fujimori authorized widespread torture, extralegal detentions, the use of military tribunals to try civilians, and the “disappearings” of hundreds of Peruvians. After an extended trial, Fujimori was sentenced to 25 years in prison for his crimes. The case is viewed inside Peru as a landmark triumph of the rule of law.
President Obama and his advisors have reacted to these disclosures through a series of unconvincing gyrations. It is clear that Obama’s principal concern throughout this process has been that the controversy surrounding torture will prove a distraction that might encumber his efforts to push through an ambitious agenda including financial industry reform, bailouts, health care reform and an array of foreign policy initiatives. While Obama came though on an election campaign promise to honor Freedom of Information Act requests by publishing previously classified government materials dealing with torture, he has also sought to dampen public reaction. But his steps have been ham-handed. On the question of possible prosecutions, Obama went to the CIA to deliver public assurances that no intelligence officers who relied on government legal opinions would be investigated or prosecuted for what they did. Shortly thereafter, his chief of staff, Rahm Emanuel and press secretary, Robert Gibbs, announced that there would be no prosecution of legal memo writers or policy makers either—steps violating clear-cut rules about the involvement of White House political figures in criminal justice matters. The White House was forced to pull back the next day, insisting that the Justice Department would handle these questions.
Obama mishandled calls for a commission of inquiry into the torture question in the same way. First he signaled that he would sign legislation creating a commission if it reached his desk. Then, forty-eight hours later, in a meeting with Senate Majority Leader Harry Reid, he signaled he would oppose such an effort. In the days that followed, White House spokesmen attempted to reconcile and explain the conflicting statements.
Obama insists America must “look forward.” He views the torture question as resolved by a series of orders he issued coming into office. But Cheney and Rove suggest another idea. It’s clear that in their view America is just one more 9/11 attack away from a transformation in which their use of the “dark arts” will again carry popular endorsement and provide a powerful wedge issue to use against Obama. Obama’s optimism about closure on the torture issue may therefore be seriously misplaced.
Well, well. The New York Times has finally put a story together on the key role that two controversial psychologists played in devising the Bush administration’s torture policies. Guess we should be thankful for small favors.
Apparently, a NYTimes “exposé” requires a 21-month gestation period; just by way of pointing out that the substance of the Times “exposé” appeared in an article the July 2007 issue of Vanity Fair.
Katherine Eban, a Brooklyn-based journalist who writes about public health, authored that article and titled it “Rorschach and Awe.” It was the result of a careful effort to understand the role of psychologists in the torture of detainees in Guantánamo.
She identified the two psychologists as James Elmer Mitchell and Bruce Jessen, who she reported were inexperienced in interrogations and “had no proof of their tactics’ effectiveness” but nevertheless sold the Bush administration on a plan to subject captives to “psychic demolition,” essentially severing them from their personalities and scaring them “almost to death.”
In Wednesday’s New York Times, reporters Scott Shane and Mark Mazzetti plow much the same ground. But please do not misunderstand. They deserve praise for finally pushing their own article past the Times‘ censors, but let’s not pretend the startling revelations are new.
The Times ought to allow the likes of Shane and Mazzetti to publish these stories when they are fresh. Alternatively, the “newspaper of record” might at least report the findings of the likes of Eban, rather than ignoring them for nearly two years.
It’s pretty much all out there now, isn’t it? Not only the Times‘ better-late-than-never “exposé,” but also:
–The (leaked) text of the report of the International Committee of the Red Cross on the torture of “high-value” detainees;
–The too-slick-by-half “legal opinions” under Department of Justice letterhead;
–The findings of the 18-month investigation by the Senate Armed Services Committee highlighting that it was President George W. Bush’s dismissal of Geneva (in his executive order of Feb. 7, 2002) that “opened the door” to abuse of detainees.
The North/Gonzales Shredder
One issue of some urgency has been overlooked in the media, but probably not by those complicit in torture by the CIA and other parts of the government. That issue is the need to protect evidence from being shredded.
I have seen no sign that Director of National Intelligence Director Dennis Blair, or CIA Director Leon Panetta, have proscribed the destruction of documents/tapes/etc. relating to torture, while decisions on if and how to proceed are being worked out.
Many will remember how Oliver North (when the crimes of Iran-Contra were uncovered) and Alberto Gonzales (when White House involvement in the Valerie Plame affair was suggested) made such good use of the days of hiatus between the announced decision to investigate and the belated decision to safeguard all evidence from destruction.
One would think that Attorney General Eric Holder, or President Barack Obama himself, would have long since issued such an order. Indeed, the absence of such an order would suggest they would just as soon avoid as many of the painful truths about torture as they can.
The issue would seem particularly urgent in the wake of Obama’s gratuitous get-out-of-jail free card issued to CIA personnel complicit in torture. They might well draw the (erroneous) conclusion that they have been, in effect, pardoned by the President and thus are within the law in destroying relevant evidence — to the degree that being within the law matters any more.
And what about the President’s decision not to prosecute those in CIA who engaged in torture? What is going on here?
Obama’s defensive tone on the recent release of the four torture documents issued by the Mafia-style lawyers of the Justice Department doesn’t square with what should be the attitude of a specialist in constitutional law. Oddly, the President and his people seem to think they must justify the release.
In the face of Rush Limbaugh/Dick Cheney-type charges that the revelations endanger national security, they argue that most of the information was already in the public domain (in the recently leaked report of the International Committee of the Red Cross, for example).
Hey, Mr. constitutional-law professor and now President, how about the fact that the Freedom of Information Act requires your administration to release such information? How about acknowledging that you are just obeying the law — or is that quaint, obsolete, or somehow passé these days?
Misplaced Loyalty or Fear?
It is highly unusual for the President to feel it necessary to visit CIA headquarters in Langley, Virginia. Vivid in my memory is the visit by President George W. Bush on Sept. 26, 2001, just two weeks after the intelligence/defense/policy failures permitted the attacks of September 11.
For some time it remained something of a puzzle, why the President felt it prudent to appear at CIA with his arm around then-CIA Director George Tenet, endorsing his leadership without reservation and bragging about having the best intelligence service in the world. In retrospect, it was a Faustian bargain.
Former CIA Director and Medal of Freedom winner, George Tenet, can be forgiven for being somewhat apprehensive these days — especially in the wake of the article by Shane and Mazzetti. But let’s leave aside for now the obviously heinous – like running George W. Bush’s global Gestapo complete with secret prisons and torture chambers, a criminal enterprise that Tenet shoe-horned into the operations directorate of the CIA.
Let’s pick a case of simpler, more familiar white-collar crimes – Scooter Libby-style perjury and obstruction of justice. Those who remember Watergate and other crimes will be aware that the cover-up constitutes an additional – and often more provable – crime, especially when it involves perjury and obstruction of justice.
Until now, Bush has managed to escape blame for his outrageous inactivity before 9/11 because his subordinates – first and foremost, Tenet – have covered up for him. Faustian bargain? Call it mutual blackmail, if you prefer the vernacular.
Tenet gave the President enough warning to warrant, to compel some sort of action on his part. But Tenet’s lackadaisical management of the CIA and intelligence community was at least as important a factor in the success of the 9/11 attacks.
Tenet should have been fired after 9/11. But President Bush needed Tenet, or at least Tenet’s silence, as much as Tenet needed Bush, or at least Bush’s forgiveness.
What developed might be described as a case of mutual blackmail disguised as bonhomie. Bush was keenly aware that Tenet had the wherewithal to let the world know how many warnings he had given the President – reducing Bush to a criminally negligent, blundering fool.
Were that to happen, Bush would have to kiss goodbye the role of cheerleader/war president – and so much else. Thus, Tenet had become critical to Bush’s political survival. And Tenet? All he needed was not to be blamed – not to be fired.
The bargain: I, George Bush, will keep you on and even praise your performance; you, George Tenet, will keep your mouth shut about all the warnings you gave me during the spring and summer of 2001. Tenet, it seems clear, agreed.
On Sept. 26, 2001, the President motored out to CIA headquarters, puts his arm around Tenet and told the cameras, “We’ve got the best intelligence we can possibly have thanks to the men and women of the CIA.”
In his sworn testimony of April 14, 2004, before the 9/11 Commission, Tenet outdid himself trying to honor his bargain with Bush. The commissioners were interested in what the president had been told during the critical month of August 2001.
Answering a question from Commissioner Timothy Roemer, Tenet referred to the President’s long vacation (July 29-Aug. 30, 2001) in Crawford and insisted that he did not see the President at all in August.
“You never talked with him?” Roemer asked.
“No,” Tenet replied, explaining that for much of August he, too, was “on leave.”
That same evening, a CIA spokesman called reporters to say that Tenet had misspoken, and that he had briefed Bush on Aug. 17 and 31, 2001. The spokesman played down the Aug. 17 briefing as uneventful and indicated that the second briefing took place after Bush had returned to Washington.
Funny how Tenet could have forgotten his first visit to Crawford, whereas in his memoir, At the Center of the Storm, Tenet waxed eloquent about the “president graciously driving me around the spread in his pickup and me trying to make small talk about the flora and the fauna.”
But the visit was not limited to small talk. In his book, Tenet writes: “A few weeks after the August 6 PDB was delivered, I followed it to Crawford to make sure the president stayed current on events.”
The Aug. 6, 2001, President’s Daily Brief contained the article “Bin Laden Determined to Strike in the US.” According to Ron Suskind’s The One-Percent Doctrine, the President reacted by telling the CIA briefer, “All right, you’ve covered your ass now.”
Clearly, Tenet needed to follow up on that. Was Tenet again in Crawford just one week later? According to a White House press release, President Bush on Aug. 25 told visitors to Crawford, “George Tenet and I” drove up the canyon “yesterday.”
If, as Tenet says in his memoir, it was the Aug. 6, 2001, PDB that prompted his visit on Aug. 17, what might have brought him back on Aug. 24? That was the day after Tenet had been briefed on Zacarias Moussaoui training to fly a 747 and other suspicion-arousing information.
The evidence is very strong that Tenet told Bush chapter and verse. The extraordinary lengths to which Tenet has gone to disguise that has the former CIA director skating very close to perjury – if not over the line.
A note on Moussaoui: despite strong encouragement from FBI special agent/lawyer Coleen Rowley at the time, the government never interviewed Moussaoui for information on a possible “second wave” of 9/11-type attacks.
Moussaoui knew Richard Reid, the shoe-bomber who almost downed an airliner on its way from London to the U.S., and might have provided forewarning, were he to been asked in the three months between 9/11 and Reid’s attempt in December 2001.
It gets worse: it does not seem that Reid was effectively interviewed either. This greatly diminishes the credibility of arguments that torture was felt to be necessary because of overweening fear of follow-up attacks.
The administration claims it was pulling out all the stops – while, in reality, it failed to take rudimentary steps to acquire information from suspected terrorists already in our custody.
Obama’s Faustian Bargain?
In a recent article on torture, I asked what might be holding the administration back on moving forward with investigation and holding accountable those proven guilty, in order to end this shameful chapter in American history once and for all.
A reader offered an answer: What’s holding them back? I’ll tell you, she said. His name is John D. Rockefeller, IV. He and other Democratic (as well as Republican) lawmakers knew of the torture and did nothing, she added.
The writer gave her name as Kathleen Rockefeller; she described herself as a cousin with courage.
The disclosures in the Shane/Mazzetti article today, and plenty of other evidence suggest that Ms. Rockefeller in not far off the mark. Powerful forces are working on our President.
Maybe, just maybe, he insisted on releasing those torture memos with the thought that the rest of us would be appropriately outraged — so outraged that we would put inexorable pressure on him to hold everyone, repeat everyone, accountable.
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9/11 Visibility Website
The Exceptional Patriot: Dr. David Ray Griffin
The Exceptional Patriot: Naomi Wolf
The Exceptional Patriot: Charlie Sheen
The Exceptional Patriot: Ed Asner
The Exceptional Patriot: Jesse Ventura
The Exceptional Patriot: Richard Gage
The Exceptional Patriot: Dr. Richard Gardener
The Exceptional Patriot: Kenny Johannemann
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The Brainwashing of Children in America
Zeitgeist: Addendum---The true source of Terrorism and Slavery