Tuesday, May 19, 2009

The 13 People Who Made Torture Possible

The 13 People Who Made 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

 

Published on Monday, May 18, 2009 by Salon.com

Distributed by Common Dreams

http://www.commondreams.org/view/2009/05/18-13

 

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 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)

 

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

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,

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 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 badgering the CIA's inspector

general when he reported many problems with the

interrogation program, and by lobbying Congress to

legally protect those who had tortured.

 

Most shockingly, 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 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. 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 -- 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, 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)

 

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." 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 "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)

 

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." 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 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)

 

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 "conveyed the authorization") for the

first known officially sanctioned use of torture -- the

CIA's interrogation of Abu Zubaydah -- 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)

 

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 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." 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. 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 specifically to

waterboarding and to separation of powers.

 

8. Jay Bybee, assistant attorney general, Office of

Legal Counsel (2001-2003) As head of the OLC when the

first torture memos were approved, Bybee signed the

memos named after him 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, he received such an

appointment. Of particular concern is the timing of

Bybee's approval of the torture techniques. 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, OLC approved

waterboarding. One of the documents in that packet

identified these actions as torture, and stated that

torture often produced unreliable results.

 

9. William "Jim" Haynes, Defense Department general

counsel (2001-2008) 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 Guantanamo and then Iraq. In September 2002,

Haynes participated in a key visit to Guantanamo (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 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 in the abuse at Abu Ghraib.

 

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

 

As secretary of defense, Rumsfeld signed off on

interrogation methods used in the military, notably for

Abu Ghraib, Bagram Air Force Base and Guantanamo Bay.

With this approval, the use of torture would move from

the CIA to the military. A recent bipartisan Senate

report concluded that "Secretary of Defense Donald

Rumsfeld's authorization of interrogation techniques at

Guantanamo 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 in the Charles Graner case

and the case of "20th hijacker" Mohammed al-Qahtani.

Rumsfeld also 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

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, Rizzo provided a description of waterboarding

using one standard, while the OLC opinion described 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, 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 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. 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, 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 -- "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)

 

While President Bush maintained some distance from the

torture for years -- 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, 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 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 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. 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 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. 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. (c) 2009 Salon.com

 

Marcy Wheeler writes her blog, emptywheel, for

FireDogLake.com

 

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