The Bush administration has come out in favor of holding suspects without a trial, torturing them, and in general suspending the Constitution. How did we arrive at this low point in American history? The story unfolded as the evidence emerged from the Abu Ghraib prison in Iraq.
How the Abu Ghraib scandal happened
From the NY Times:
Mr. Rumsfeld's Defense
Published: May 8, 2004
If Donald Rumsfeld went to Congress yesterday to explain why he should remain secretary of defense, he failed. His daylong testimony in the House and Senate has confirmed that Mr. Rumsfeld fatally bungled the Abu Ghraib prison scandal.
But the hearings highlighted broader issues.
Mr. Rumsfeld, the military brass and some of the lawmakers badly missed the point by talking endlessly about a few bad apples in one military unit. The despicable acts shown in those famous photos — and in videos that are being held back by the military but may still produce another round of global humiliation — were uniquely outrageous and inexcusable criminal acts. But behind them lies a detention system that treats all prisoners as terrorists regardless of their supposed offenses, and makes brutal interrogations all too common.
The hearings also gave Americans a chilling new reminder of the mess the Bush administration, particularly Mr. Rumsfeld, has made of the Iraq occupation. With their perfect sense of certainty that they were right and everyone else wrong, Mr. Rumsfeld and his colleagues never planned adequately for the occupation. They were unprepared to handle the 43,000-plus Iraqi prisoners they ultimately took or the armed insurgents they faced — even though disorder and resistance were widely predicted.
The destructive stress created by the administration's lack of preparation was distressingly evident yesterday, when the hearings revealed that the members of the Army Reserve military police detachment stationed at Abu Ghraib had been sent to Iraq without being trained as ordinary prison guards, much less for the nightmarish duty they would face. Mr. Rumsfeld and other Pentagon witnesses said those untrained part-time soldiers had been put under the supervision of military intelligence officers who farmed out interrogation work to private contractors. That inexplicable chain of shifted responsibility violated not just any sort of common sense, but also military rules.
Although the Army's own report said the guards had been told by intelligence officers and their consultants to "soften up" prisoners for interrogation by depriving them of sleep and subjecting them to pain and humiliation, Mr. Rumsfeld said he "cannot conceive" that they thought their actions were condoned or encouraged. When he insisted that the normal rules for handling prisoners were in effect, several senators reminded him that he had said in January 2002 that suspected terrorists were not covered by the Geneva Convention.
Mr. Rumsfeld told the senators that his remarks about ignoring the international rules on the treatment of prisoners applied only to people captured in Afghanistan, not Iraq. That was a fine distinction some of the minimally prepared guards at Abu Ghraib may not have grasped, particularly since they were never instructed on the rules of the Geneva Convention. Like most Americans, however, they had heard their commander in chief paint the war in Iraq as an antiterrorism campaign.
Mr. Rumsfeld's belated apology yesterday was nice to hear. But the secretary spent a lot of time dodging responsibility. When he was chided for not telling the public, Congress or even the president about Abu Ghraib, Mr. Rumsfeld claimed that the Army had provided all the disclosure necessary last January with its inadequate press release announcing the criminal investigations. But when he was pressed on why he had not kept track of the case, Mr. Rumsfeld offered the astonishing argument that he could not have been expected to find this one case among the pile of 3,000 courts-martial initiated in the last year.
Yesterday, Senator John McCain eloquently warned that the administration must deal quickly and publicly with the investigation. "As Americans turned away from the Vietnam War, they may turn away from this one unless this issue is quickly resolved with full disclosure immediately," he said.
We strongly agree.
Guards just doing what they were taught
UK forces taught torture methods
Saturday May 8, 2004
The sexual humiliation of Iraqi prisoners at Abu Ghraib prison was not an invention of maverick guards, but part of a system of ill-treatment and degradation used by special forces soldiers that is now being disseminated among ordinary troops and contractors who do not know what they are doing, according to British military sources.
The techniques devised in the system, called R2I -- resistance to interrogation -- match the crude exploitation and abuse of prisoners at the Abu Ghraib jail in Baghdad.
One former British special forces officer who returned last week from Iraq, said: "It was clear from discussions with US private contractors in Iraq that the prison guards were using R2I techniques, but they didn't know what they were doing."
He said British and US military intelligence soldiers were trained in these techniques, which were taught at the joint services interrogation centre in Ashford, Kent, now transferred to the former US base at Chicksands.
"There is a reservoir of knowledge about these interrogation techniques which is retained by former special forces soldiers who are being rehired as private contractors in Iraq. Contractors are bringing in their old friends".
Using sexual jibes and degradation, along with stripping naked, is one of the methods taught on both sides of the Atlantic under the slogan "prolong the shock of capture", he said.
Female guards were used to taunt male prisoners sexually and at British training sessions when female candidates were undergoing resistance training they would be subject to lesbian jibes.
"Most people just laugh that off during mock training exercises, but the whole experience is horrible. Two of my colleagues couldn't cope with the training at the time. One walked out saying 'I've had enough', and the other had a breakdown. It's exceedingly disturbing," said the former Special Boat Squadron officer, who asked that his identity be withheld for security reasons.
Many British and US special forces soldiers learn about the degradation techniques because they are subjected to them to help them resist if captured. They include soldiers from the SAS, SBS, most air pilots, paratroopers and members of pathfinder platoons.
A number of commercial firms which have been supplying interrogators to the US army in Iraq boast of hiring former US special forces soldiers, such as Navy Seals.
"The crucial difference from Iraq is that frontline soldiers who are made to experience R2I techniques themselves develop empathy. They realise the suffering they are causing. But people who haven't undergone this don't realise what they are doing to people. It's a shambles in Iraq".
The British former officer said the dissemination of R2I techniques inside Iraq was all the more dangerous because of the general mood among American troops.
"The feeling among US soldiers I've spoken to in the last week is also that 'the gloves are off'. Many of them still think they are dealing with people responsible for 9/11".
When the interrogation techniques are used on British soldiers for training purposes, they are subject to a strict 48-hour time limit, and a supervisor and a psychologist are always present. It is recognised that in inexperienced hands, prisoners can be plunged into psychosis.
The spectrum of R2I techniques also includes keeping prisoners naked most of the time. This is what the Abu Ghraib photographs show, along with inmates being forced to crawl on a leash; forced to masturbate in front of a female soldier; mimic oral sex with other male prisoners; and form piles of naked, hooded men.
The full battery of methods includes hooding, sleep deprivation, time disorientation and depriving prisoners not only of dignity, but of fundamental human needs, such as warmth, water and food.
The US commander in charge of military jails in Iraq, Major General Geoffrey Miller, has confirmed that a battery of 50-odd special "coercive techniques" can be used against enemy detainees. The general, who previously ran the prison camp at Guantánamo Bay, said his main role was to extract as much intelligence as possible.
Interrogation experts at Abu Ghraib prison were there to help make the prison staff "more able to garner intelligence as rapidly as possible".
Sleep deprivation and stripping naked were techniques that could now only be authorised at general officer level, he said.
Abuse was official policy
The newly-released International Committee of the Red Cross (ICRC) report on prison conditions in Iraq confirms that the abuse was official policy, not an aberration. From Josh Marshall's Talking Points Memo:
Look further into the report and you see that the kind of "ill-treatment" they're talking about is pretty much like the stuff we've been seeing in those pictures. The fact that this only seemed to happen while most prisoners were in the interrogation phase, and then generally to the ones who Military Intelligence thought might have really choice information, tells you that this wasn't a matter of a breakdown of authority or rogue sadists (those who were probably in the mix too) but rather a matter of organized policy.
I don't think there's any other way to make sense of what the report contains. Why else would the pattern of 'ill-treatment' be so focused and consistent?
In the crudest terms, it makes sense. What the ICRC termed "threats and humiliations [and] both physical and psychological coercion, which in some cases was tantamount to torture" (pp. 3-4, 11) was reserved for use as an aide in interrogations, and mainly for the interrogations of detainees thought to have particularly valuable information.
The key passage is probably on page 11 where it states that "methods of physical and psychological coercion used by the interrogators appeared to be part of the standard operating procedures by military intelligence personnel to obtain confessions and extract information. Several military intelligence officers confirmed to ICRC that it was part of the military intelligence process to hold a person deprived of his liberty naked in a completely dark and empty cell for a prolonged period [,] to use inhumane and degrading treatment, including physical and psychological coercion, against persons deprived of their liberty to secure their cooperation." (itals added)
The list of frequently used methods of 'ill-treatment' is on page 12 and among other things includes beatings of various sorts, threats of various sorts — including further 'ill-treatment', "reprisals against family members, imminent exeuction or transfer to Guantanamo" — being paraded around naked, being photographed in humiliating positions, etc.
On page 13 and 14 there is again the use of threats of execution, mock execution, threats of reprisals against family members, etc. Through the report, we hear again and again the threat of being sent to Gitmo.
Administration's attitude encouraged torture
Is there any chance this abuse was an aberration, as the Bush administration has claimed? Or was it authorized by a few misguided, middle-level officers? Did the buck stop in the Pentagon, as Rumsfeld suggested in his testimony, rather than in the White House?
No. The abuse was the opposite of an aberration: a clear reflection of our values from the top down. From the The Price of Arrogance by Fareed Zakaria in the May 17 issue of Newsweek:
Rumsfeld went on in his testimony to explain that "these terrible acts were perpetrated by a small number." That's correct, except the small number who are truly responsible are not the handful of uniformed personnel currently being charged for the prison abuse scandal. The events at Abu Ghraib are part of a larger breakdown in American policy over the past two years. And it has been perpetrated by a small number of people at the highest levels of government.
Since 9/11, a handful of officials at the top of the Defense Department and the vice president's office have commandeered American foreign and defense policy. In the name of fighting terror they have systematically weakened the traditional restraints that have made this country respected around the world. Alliances, international institutions, norms and ethical conventions have all been deemed expensive indulgences at a time of crisis.
Within weeks after September 11, senior officials at the Pentagon and the White House began the drive to maximize American freedom of action. They attacked specifically the Geneva Conventions, which govern behavior during wartime. Donald Rumsfeld explained that the conventions did not apply to today's "set of facts." He and his top aides have tried persistently to keep prisoners out of the reach of either American courts or international law, presumably so that they can be handled without those pettifogging rules as barriers. Rumsfeld initially fought both the uniformed military and Colin Powell, who urged that prisoners in Guantanamo be accorded rights under the conventions. Eventually he gave in on the matter but continued to suggest that the protocols were antiquated. Last week he said again that the Geneva Conventions did not "precisely apply" and were simply basic rules.
The conventions are not exactly optional. They are the law of the land, signed by the president and ratified by Congress. Rumsfeld's concern—that Al Qaeda members do not wear uniforms and are thus "unlawful combatants"—is understandable, but that is a determination that a military court would have to make. In a war that could go on for decades, you cannot simply arrest and detain people indefinitely on the say-so of the secretary of Defense.
The basic attitude taken by Rumsfeld, Cheney and their top aides has been "We're at war; all these niceties will have to wait." As a result, we have waged pre-emptive war unilaterally, spurned international cooperation, rejected United Nations participation, humiliated allies, discounted the need for local support in Iraq and incurred massive costs in blood and treasure. If the world is not to be trusted in these dangerous times, key agencies of the American government, like the State Department, are to be trusted even less. Congress is barely informed, even on issues on which its "advise and consent" are constitutionally mandated.
© 2004 Newsweek, Inc.
Yep, Rumsfeld is responsible...
From the NY Times:
Rumsfeld and Aide Backed Harsh Tactics, Article Says
By DAVID JOHNSTON and TIM GOLDEN
Published: May 16, 2004
WASHINGTON, May 15 — Secretary of Defense Donald H. Rumsfeld and one of his top aides authorized the expansion of a secret program that permitted harsh interrogations of detained members of Al Qaeda, allowing these methods to be used against prisoners at the Abu Ghraib prison in Iraq, according to an article in The New Yorker.
The article, by Seymour M. Hersh, reported that Mr. Rumsfeld and Stephen A. Cambone, the undersecretary of defense for intelligence, approved the use of the tougher interrogation techniques in Iraq in 2003 to extract better information from Iraqi prisoners to counter the growing insurgency threat in the country.
Mr. Hersh's account, to be published in the May 24 issue of the magazine, said that the expansion of the "special access program" allowed authorities in charge of Abu Ghraib to engage in degrading and sexually humiliating practices. It was posted on Saturday on The New Yorker's Web site.
"According to interviews with several past and present American intelligence officials," Mr. Hersh wrote, "the Pentagon's operation, known inside the intelligence community by several code words, including Copper Green, encouraged physical coercion and sexual humiliation of Iraqi prisoners in an effort to generate more intelligence about the growing insurgency in Iraq."
So Rumsfeld is to blame, directly or indirectly. The next question is, "What did Bush know and when did he know it?" From Newsweek:
The Roots of Torture
Officials in Colin Powell's State Department were 'horrified' by the Bush administration's apparent willingness to ignore Geneva protocols
By John Barry, Michael Hirsh and Michael Isikoff
May 24 issue -- The Bush administration's emerging approach was that America's enemies in this war were "unlawful" combatants without rights. One Justice Department memo, written for the CIA late in the fall of 2001, put an extremely narrow interpretation on the international anti-torture convention, allowing the agency to use a whole range of techniques—including sleep deprivation, the use of phobias and the deployment of "stress factors"—in interrogating Qaeda suspects. The only clear prohibition was "causing severe physical or mental pain"—a subjective judgment that allowed for "a whole range of things in between," said one former administration official familiar with the opinion. On Dec. 28, 2001, the Justice Department Office of Legal Counsel weighed in with another opinion, arguing that U.S. courts had no jurisdiction to review the treatment of foreign prisoners at Guantanamo Bay. The appeal of Gitmo from the start was that, in the view of administration lawyers, the base existed in a legal twilight zone—or "the legal equivalent of outer space," as one former administration lawyer described it. And on Jan. 9, 2002, John Yoo of Justice's Office of Legal Counsel coauthored a sweeping 42-page memo concluding that neither the Geneva Conventions nor any of the laws of war applied to the conflict in Afghanistan.
Cut out of the process, as usual, was Colin Powell's State Department. So were military lawyers for the uniformed services. When State Department lawyers first saw the Yoo memo, "we were horrified," said one. As State saw it, the Justice position would place the United States outside the orbit of international treaties it had championed for years. Two days after the Yoo memo circulated, the State Department's chief legal adviser, William Howard Taft IV, fired a memo to Yoo calling his analysis "seriously flawed." State's most immediate concern was the unilateral conclusion that all captured Taliban were not covered by the Geneva Conventions. "In previous conflicts, the United States has dealt with tens of thousands of detainees without repudiating its obligations under the Conventions," Taft wrote. "I have no doubt we can do so here, where a relative handful of persons is involved."
The White House was undeterred. By Jan. 25, 2002, according to a memo obtained by NEWSWEEK, it was clear that Bush had already decided that the Geneva Conventions did not apply at all, either to the Taliban or Al Qaeda. In the memo, which was written to Bush by Gonzales, the White House legal counsel told the president that Powell had "requested that you reconsider that decision." Gonzales then laid out startlingly broad arguments that anticipated any objections to the conduct of U.S. soldiers or CIA interrogators in the future. "As you have said, the war against terrorism is a new kind of war," Gonzales wrote to Bush. "The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians." Gonzales concluded in stark terms: "In my judgment, this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions."
Gonzales also argued that dropping Geneva would allow the president to "preserve his flexibility" in the war on terror. His reasoning? That U.S. officials might otherwise be subject to war-crimes prosecutions under the Geneva Conventions. Gonzales said he feared "prosecutors and independent counsels who may in the future decide to pursue unwarranted charges" based on a 1996 U.S. law that bars "war crimes," which were defined to include "any grave breach" of the Geneva Conventions. As to arguments that U.S. soldiers might suffer abuses themselves if Washington did not observe the conventions, Gonzales argued wishfully to Bush that "your policy of providing humane treatment to enemy detainees gives us the credibility to insist on like treatment for our soldiers."
But wait, there's more. Not only did the Justice Dept. prepare a memo justifying torture, so did the Defense Dept.
Pentagon Report Set Framework For Use of Torture
By Jess Bravin
The Wall Street Journal via Truthout
Monday 07 June 2004
Security or Legal Factors Could Trump Restrictions, Memo to Rumsfeld Argued.
Bush administration lawyers contended last year that the president wasn't bound by laws prohibiting torture and that government agents who might torture prisoners at his direction couldn't be prosecuted by the Justice Department.
The advice was part of a classified report on interrogation methods prepared for Defense Secretary Donald Rumsfeld after commanders at Guantanamo Bay, Cuba, complained in late 2002 that with conventional methods they weren't getting enough information from prisoners.
Why would these agencies be trying to circumvent the law if the Bush administration's policy was to follow the Geneva Conventions? It's inconceivable that they would seek to contradict Bush, who is infamous for expecting blind obedience in his underlings. No, these agencies must have had permission to find some way to legalize torture.
If that isn't enough to indict the administration, consider the following note on the attitude in the White House. From the May 6 edition of The Nelson Report, as quoted in Talking Points Memo:
We can contribute a second hand anecdote to newspaper stories on rising concern, last year, from Secretary of State Powell and Deputy Secretary Armitage about Administration attitudes and the risks they might entail: according to eye witnesses to debate at the highest levels of the Administration...the highest levels...whenever Powell or Armitage sought to question prisoner treatment issues, they were forced to endure what our source characterizes as "around the table, coarse, vulgar, frat-boy bully remarks about what these tough guys would do if THEY ever got their hands on prisoners...."
— let's be clear: our source is not alleging "orders" from the White House. Our source is pointing out that, as we said in the Summary, a fish rots from its head. The atmosphere created by Rumsfeld's controversial decisions was apparently aided and abetted by his colleagues in their callous disregard for the implications of the then-developing situation, and by their ridicule of the only combat veterans at the top of this Administration.
More on the administration's culpability
Give Rumsfeld the Pinochet Treatment, Says US Amnesty Chief
Amnesty International Takes Aim at United States in Annual Human Rights Report
U.S. 'Thumbs Its Nose' at Rights, Amnesty Says
Bush Claimed Right to Waive Torture Laws
Rumsfeld Approved Methods for Guantanamo Interrogations
"[E]verything we see in those pictures was OK'd as a matter of policy at the highest levels or, at a minimum, permitted to take place on an ongoing basis"
Legalizing Torture: President "was declared empowered to disregard U.S. and international law and order the torture of foreign prisoners"
Bush the Would-Be Torturer: "Bush would be a war criminal if he authorizes torture as recommended in the classified report"
Sexual Humiliation: Forced Nudity of Iraqi Prisoners Is Seen as a Pervasive Pattern, Not Isolated Incidents
Memo says Bush has authority to set aside laws; "inherent in the president," claims Pentagon report
Powell: Bush Told of Red Cross Reports; President may have known about Iraqi prisoner abuse earlier than he's admitted
The evidence mounts
The noose tightens around the Bush administration as a report implicitly blames top US officials for Abu Ghraib. From the NY Times:
Defense Leaders Faulted by Panel in Prison Abuse
By ERIC SCHMITT
Published: August 24, 2004
WASHINGTON, Aug. 23 -- A high-level outside panel reviewing American military detention operations has concluded that leadership failures at the highest levels of the Pentagon, Joint Chiefs of Staff and military command in Iraq contributed to an environment in which detainees were abused at Abu Ghraib prison and other facilities, Defense officials said Monday.
The report, set to be released Tuesday, does not explicitly blame Defense Secretary Donald H. Rumsfeld for the misconduct or for ordering policies that condoned or encouraged it. But the panel implicitly faults Mr. Rumsfeld, as well as his top civilian and military aides, for not exercising sufficient oversight over a confusing array of policies and interrogation practices at detention centers in Cuba, Afghanistan and Iraq, officials said.
From the LA Times, 8/24/04:
Abuse Panel Says Brass Share Blame
By Mark Mazzetti and Richard A. Serrano, Times Staff Writers
WASHINGTON — Ultimate blame for the wanton abuse of detainees at the Abu Ghraib prison in Iraq goes all the way to the Pentagon's top civilian and military command, but none of them should resign because their forced departures would only energize the enemy, an independent panel concluded today.
The group harshly criticized Secretary of Defense Donald H. Rumsfeld and other senior civilian leaders for not laying down specific, consistent policies on how detainees were to be treated, and it severely chastised Lt. Gen. Ricardo Sanchez and other top military leaders for not properly training and staffing units that were guarding and interrogating prisoners at the detention facility outside Baghdad.
In addition, the panel headed by former Defense Secretary James R. Schlesinger said it agreed with a number of conclusions in a separate report being issued today that military intelligence officers shared culpability for abuses with seven military police officers who have been charged so far. That investigation, focusing on the conduct of military intelligence operations at Abu Ghraib, documents 44 individual abuse cases at the prison and will say "a number of these cases involved MI personnel directing the actions of MP personnel."
To that end, the four-member Schlesinger panel reporting today said that additional criminal charges should be filed, a development that would expand the scandal far beyond the low-level Army military police reservists awaiting court martial proceedings.
Calling the night shift along Tier 1A at Abu Ghraib a scene of "brutality and purposeless sadism," the Schlesinger group added: "We now know these abuses occurred at the hands of both military police and military intelligence personnel."
It blames top generals, including Sanchez, for misinterpreting higher orders and promulgating a confusing series of contradictory interrogation policies. It also faults Rumsfeld for failing to adequately assemble legal and military experts to set interrogation parameters early in the occupation of Iraq.
The panel traced the bureaucratic clumsiness to the 2002 memo issued by President Bush determining that the Geneva Convention did not apply to Taliban and Al Qaeda prisoners, saying the memo led Sanchez to believe that "additional, tougher measures were warranted" in Iraq.
The panel led by Schlesinger included Harold Brown, a Defense secretary under former President Carter; former Rep. Tillie Fowler (R-Fla.); and retired Air Force Gen. Charles A. Horner.
Brown said today that prison guards at Abu Ghraib suffered from an "extreme lack of resources" and "poorly defined" responsibilities. The panel's report found that because different commanders were placed in charge of prison operations at different times, "no single individual was responsible for overseeing operations at the prison."
From the NY Times:
A Trail of 'Major Failures' Leads to Defense Secretary's Office
By DOUGLAS JEHL
Published: August 25, 2004
WASHINGTON, Aug. 24 -- For Donald H. Rumsfeld to resign over the prison abuses at Abu Ghraib would be a mistake, the four-member panel headed by James M. Schlesinger asserted Tuesday. But in tracing responsibility for what went wrong at Abu Ghraib, it drew a line that extended to the defense secretary's office.
The panel cited what it called major failures on the part of Mr. Rumsfeld and his aides in not anticipating and responding swiftly to the post-invasion insurgency in Iraq. On the eve of the Republican convention, that verdict could not have been welcome at the White House, where postwar problems in Iraq represent perhaps President Bush's greatest political liability.
The report rarely mentions Mr. Rumsfeld by name, referring most often instead to the "office of the secretary of defense." But as a sharp criticism of postwar planning for Iraq, it represents the most explicit official indictment to date of an operation that was very much the province of Mr. Rumsfeld and his top deputies.
...as is Bush, ultimately
Summing up the known evidence, Andrew Sullivan explains how President Bush sent the message that torture was okay. From "Atrocities in Plain Sight" in the NY Times, 1/13/05:
The critical enabling decision was the president's insistence that prisoners in the war on terror be deemed "unlawful combatants" rather than prisoners of war. The arguments are theoretically sound ones -- members of Al Qaeda and the Taliban are not party to the Geneva Convention and their own conduct violates many of its basic demands. But even at the beginning, President Bush clearly feared the consequences of so broad an exemption for cruel and inhumane treatment. So he also insisted that although prisoners were not legally eligible for humane treatment, they should be granted it anyway. The message sent was: these prisoners are beneath decent treatment, but we should still provide it. That's a strangely nuanced signal to be giving the military during wartime.
You can see the same strange ambivalence in Secretary of Defense Donald Rumsfeld's decision to approve expanded interrogation techniques in December 2002 for Guantánamo inmates -- and then to revoke the order six weeks later. The documents show that the president was clearly warned of the dangers of the policy he decided upon -- Colin Powell's January 2002 memo is almost heart-breakingly prescient and sane in this regard -- but he pressed on anyway. Rumsfeld's own revocation of the order suggests his own moral qualms about what he had unleashed.
But Bush clearly leaned toward toughness. Here's the precise formulation he used: "As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva." (My italics.)
Notice the qualifications. The president wants to stay not within the letter of the law, but within its broad principles, and in the last resort, "military necessity" can overrule all of it. According to his legal counsel at the time, Alberto R. Gonzales, the president's warmaking powers gave him ultimate constitutional authority to ignore any relevant laws in the conduct of the conflict. Sticking to the Geneva Convention was the exclusive prerogative of one man, George W. Bush; and he could, if he wished, make exceptions. As Assistant Attorney General Jay S. Bybee argues in another memo: "Any effort to apply Section 2340A in a manner that interferes with the president's direction of such core war matters as the detention and interrogation of enemy combatants thus would be unconstitutional." (Section 2340A refers to the United States law that incorporates the international Convention Against Torture.)
The president's underlings got the mixed message. Bybee analyzed the relevant statutes against torture to see exactly how far the military could go in mistreating prisoners without blatant illegality. His answer was surprisingly expansive. He argued that all the applicable statutes and treaty obligations can be read in such a way as to define torture very narrowly. Bybee asserted that the president was within his legal rights to permit his military surrogates to inflict "cruel, inhuman or degrading" treatment on prisoners without violating strictures against torture. For an act of abuse to be considered torture, the abuser must be inflicting pain "of such a high level of intensity that the pain is difficult for the subject to endure." If the abuser is doing this to get information and not merely for sadistic enjoyment, then "even if the defendant knows that severe pain will result from his actions," he's not guilty of torture. Threatening to kill a prisoner is not torture; "the threat must indicate that death is 'imminent.' " Beating prisoners is not torture either. Bybee argues that a case of kicking an inmate in the stomach with military boots while the prisoner is in a kneeling position does not by itself rise to the level of torture.
Bybee even suggests that full-fledged torture of inmates might be legal because it could be construed as "self-defense," on the grounds that "the threat of an impending terrorist attack threatens the lives of hundreds if not thousands of American citizens." By that reasoning, torture could be justified almost anywhere on the battlefield of the war on terror. Only the president's discretion forbade it. These guidelines were formally repudiated by the administration the week before Gonzales's appearance before the Senate Judiciary Committee for confirmation as attorney general.
In this context, Rumsfeld's decision to take the gloves off in Guantánamo for six weeks makes more sense. The use of dogs to intimidate prisoners and the use of nudity for humiliation were now allowed. Although abuse was specifically employed in only two cases before Rumsfeld rescinded the order, practical precedents had been set; and the broader mixed message sent from the White House clearly reached commanders in the field. Lt. Gen. Ricardo S. Sanchez, in charge of the Iraq counterinsurgency, also sent out several conflicting memos with regard to the treatment of prisoners -- memos that only added to the confusion as to what was permitted and what wasn't. When the general in charge of Guantánamo was sent to Abu Ghraib to help intelligence gathering, the "migration" of techniques (the term used in the Pentagon's Schlesinger Report) from those reserved for extreme cases in the leadership of Al Qaeda to thousands of Iraqi civilians, most of whom, according to intelligence sources, were innocent of any crime at all, was complete. Again, there is no evidence of anyone at a high level directly mandating torture or abuse, except in two cases in Gitmo. But there is growing evidence recently uncovered by the A.C.L.U. -- not provided in Danner's compilation -- that authorities in the F.B.I. and elsewhere were aware of abuses and did little to prevent or stop them. Then there were the vast loopholes placed in the White House torture memos, the precedents at Guantánamo, the winks and nods from Washington and the pressure of an Iraqi insurgency that few knew how to restrain. It was a combustible mix.
What's notable about the incidents of torture and abuse is first, their common features, and second, their geographical reach. No one has any reason to believe any longer that these incidents were restricted to one prison near Baghdad. They were everywhere: from Guantánamo Bay to Afghanistan, Baghdad, Basra, Ramadi and Tikrit and, for all we know, in any number of hidden jails affecting "ghost detainees" kept from the purview of the Red Cross. They were committed by the Marines, the Army, the Military Police, Navy Seals, reservists, Special Forces and on and on. The use of hooding was ubiquitous; the same goes for forced nudity, sexual humiliation and brutal beatings; there are examples of rape and electric shocks. Many of the abuses seem specifically tailored to humiliate Arabs and Muslims, where horror at being exposed in public is a deep cultural artifact.
Whether random bad apples had picked up these techniques from hearsay or whether these practices represented methods authorized by commanders grappling with ambiguous directions from Washington is hard to pin down from the official reports. But it is surely significant that very few abuses occurred in what the Red Cross calls "regular internment facilities." Almost all took place within prisons designed to collect intelligence, including, of course, Saddam Hussein's previous torture palace at Abu Ghraib and even the former Baathist secret police office in Basra. (Who authorized the use of these particular places for a war of liberation is another mystery.) This tells us two things: that the vast majority of soldiers in Iraq and elsewhere had nothing to do with these incidents; and that the violence had a purpose. The report of the International Committee of the Red Cross says: "Several military intelligence officers confirmed to the I.C.R.C. that it was part of the military intelligence process to hold a person deprived of his liberty naked in a completely dark and empty cell for a prolonged period to use inhumane and degrading treatment, including physical and psychological coercion."
An e-mail message recovered by Danner from a captain in military intelligence in August 2003 reveals the officer's desire to distinguish between genuine prisoners of war and "unlawful combatants." The president, of course, had endorsed that distinction in theory, although not in practice -- even in Guantánamo, let alone Iraq. Somehow Bush's nuances never made it down the chain to this captain. In the message, he asked for advice from other intelligence officers on which illegal techniques work best: a "wish list" for interrogators. Then he wrote: "The gloves are coming off gentlemen regarding these detainees, Col. Boltz has made it clear that we want these individuals broken."
Sullivan goes on to apportion blame for the torture:
Who was responsible? There are various levels of accountability. But it seems unmistakable from these documents that decisions made by the president himself and the secretary of defense contributed to confusion, vagueness and disarray, which, in turn, led directly to abuse and torture. The president bears sole responsibility for ignoring Colin Powell's noble warnings. The esoteric differences between legal "abuse" and illegal "torture" and the distinction between "prisoners of war" and "unlawful combatants" were and are so vague as to make the abuse of innocents almost inevitable. Justice Sandra Day O'Connor wrote for the majority of the Supreme Court in Hamdi v. Rumsfeld that "the government has never provided any court with the full criteria that it uses in classifying individuals" as enemy combatants. It is one thing to make a distinction in theory between Geneva-protected combatants and unprotected Qaeda operatives. But in the chaos of a situation like Iraq, how can you practically know the difference? When one group is designated as unworthy of humane treatment, and that group is impossible to distinguish from others, it is unsurprising that exceptions quickly become rules. The best you can say is that in an administration with a reputation for clear lines of command and clear rules of engagement, the vagueness and incompetence are the most striking features.
Worse, the president has never acknowledged the scope or the real gravity of what has taken place. His first instinct was to minimize the issue; later, his main references to it were a couple of sentences claiming that the abuses were the work of a handful of miscreants, rather than a consequence of his own decisions. But the impact of these events on domestic morale, on the morale of the vast majority of honorable soldiers in a very tough place and on the reputation of the United States in the Middle East is incalculable. The war on terror is both military and political. The president's great contribution has been to recognize that a solution is impossible without political reform in the Middle East. And yet the prevalence of brutality and inhumanity among American interrogators has robbed the United States of the high ground it desperately needs to maintain in order to win. What better weapon for Al Qaeda than the news that an inmate at Guantánamo was wrapped in the Israeli flag or that prisoners at Abu Ghraib were raped? There is no escaping the fact that, whether he intended to or not, this president handed Al Qaeda that weapon. Sometimes a brazen declaration of toughness is actually a form of weakness. In a propaganda war for the hearts and minds of Muslims everywhere, it's simply self-defeating.
And the damage done was intensified by President Bush's refusal to discipline those who helped make this happen. A president who truly recognized the moral and strategic calamity of this failure would have fired everyone responsible. But the vice president's response to criticism of the defense secretary in the wake of Abu Ghraib was to say, "Get off his back." In fact, those with real responsibility for the disaster were rewarded. Rumsfeld was kept on for the second term, while the man who warned against ignoring the Geneva Conventions, Colin Powell, was seemingly nudged out. The man who wrote a legal opinion maximizing the kind of brutal treatment that the United States could legally defend, Jay S. Bybee, was subsequently rewarded with a nomination to a federal Court of Appeals. General Sanchez and Gen. John P. Abizaid remain in their posts. Alberto R. Gonzales, who wrote memos that validated the decision to grant Geneva status to inmates solely at the president's discretion, is now nominated to the highest law enforcement job in the country: attorney general. The man who paved the way for the torture of prisoners is to be entrusted with safeguarding the civil rights of Americans. It is astonishing he has been nominated, and even more astonishing that he will almost certainly be confirmed.
But in a democracy, the responsibility is also wider. Did those of us who fought so passionately for a ruthless war against terrorists give an unwitting green light to these abuses? Were we naïve in believing that characterizing complex conflicts from Afghanistan to Iraq as a single simple war against "evil" might not filter down and lead to decisions that could dehumanize the enemy and lead to abuse? Did our conviction of our own rightness in this struggle make it hard for us to acknowledge when that good cause had become endangered? I fear the answer to each of these questions is yes.
So Bush, Rumsfeld, the top military brass, and the neocon supporters of war are all responsible. This apple is rotten to the core, in other words.
For the cultural implications of the Abu Ghraib scandal, see Prison Abuse Shows America's Values.
More on America's sanctioning of torture
Torture memo cited Indian law
Rewriting the Geneva Conventions
America's exceptional values
America's cultural mindset
How can liberals "take the side of 8th Century religious fanatics who brag about murdering writers, stoning women, beheading homosexuals...?"
"The [Horsey] cartoon starts off with a false premise: that Muslim prisoners are routinely torture murdered by the military."
"Where were these 'outraged' Arabs when 19 Muslims blew up the World Trade Center and the Pentagon on 9/11/01?"
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