Cheating Justice (16 page)

Despite being riddled with problems, the memos were important to President Bush and his team. Based on the distorted interpretation of the law in these secret documents, the president, vice president, and their team began to claim that their behavior in authorizing “enhanced” interrogation was “legal.”

Almost as soon as the memos were sent off, waterboarding began on Abu Zubaydah. He was subjected to this form of suffocation by water eighty-three times. But that was only a part of his treatment. Singly and in combination, he was forced into standing stress positions for prolonged periods; beatings by use of a collar around his neck from which he was swung around the room and into walls; confinement in boxes, one of which required crouching and broke open stitches from surgery; slapping; nudity; sleep deprivation; elimination of solid food; exposure to cold temperatures; and more. In short, Zubaydah was subjected to all of the techniques “approved” in the torture memos, by the National Security Council Principals Committee, and by President Bush himself.

On December 2, 2002, Donald Rumsfeld signed a memo that approved fifteen aggressive techniques pulled from the SERE program for use in the military. These were: yelling; deception; stress positions, such as forced standing; use of fake letters from family or other falsified documents; isolation for up to thirty days; interrogation outside the standard interrogation booth; deprivation of light and auditory stimuli; hooding; twenty-hour interrogations; removal of religious and comfort items; switching from regular rations to ready-to-eat meals; removal of clothing; forced grooming, such as shaving of facial hair; use of individual phobias like fear of dogs to induce stress; mild, noninjurious physical contact, like grabbing, poking, pushing; scenarios to convince the detainee that death or painful consequences were imminent for him or his family; exposure to cold weather or water; use of a wet towel and dripping water to induce the sensation of suffocation.
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Waterboarding, of course, became the most controversial torture technique when its approved use became publicly known. Waterboarding is a process of suffocation in which the victim is brought to the very edge of dying and then is revived. The victim experiences drowning. The SERE description said: “The application of the waterboard technique involves binding the detainee to a bench with his feet elevated above his head. The detainee's head is immobilized and an interrogator places a cloth over the detainee's mouth and nose while pouring water onto the cloth in a controlled manner. Airflow is restricted for twenty to forty seconds and the technique produces the sensation of drowning and suffocation.” To prove
that it was no big deal, Chicago's syndicated shock jock Erich “Mancow” Muller offered himself up for a controlled waterboarding experiment in May 2009. (“They cut off our heads, we put water on their face,” he'd joked.) When the water was poured, he threw his emergency signal almost instantly. The experimenters stopped and sat him up. “Absolutely torture,” Mancow declared.
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On a different radio show in October 2006, Vice President Cheney concurred with a listener who asked what was wrong with “a dunk in the water.” Cheney responded, “Well, it's a no-brainer for me.” He backtracked later in the week and said that his comments were not about waterboarding, according to the
Washington Post
on October 26, 2006.
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Khalid Sheik Mohammed became the most waterboarded detainee. The torture was used on him 183 times, along with other enhanced interrogation techniques. President Bush told a crowd in Michigan on June 2, 2010, he ordered the waterboarding of Mohammed. “I would do it again,” the president said.
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Lawyers throughout the military warned Rumsfeld against the use of the enhanced interrogation techniques: “crosses the line of ‘humane' treatment,” wrote one; would “expose our service members to possible prosecution,” wrote another.
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Rumsfeld ignored them. In signing the December 2, 2002, order, Rumsfeld added only one comment: “I stand for 8–10 hours a day. Why is standing limited to 4 hours?”

Rumsfeld's authorization became the third core action that led to the systemic use of torture. The techniques that he authorized violated U.S. law as well as the Geneva Conventions. “Secretary of Defense Donald Rumsfeld's authorization of aggressive interrogation techniques for use at Guantánamo Bay was a direct cause of detainee abuse there,” according to the Senate Armed Services Committee. “What followed was an erosion in standards dictating that detainees be treated humanely,” the Senate committee wrote.

Immediately after Rumsfeld signed the December 2 order, U.S. personnel at Guantánamo began six weeks of brutal interrogation of Mohammed al Qahtani. “The torture debate centers on the permissibility of things such as waterboarding, yet it never even broaches the topics of solitary confinement, short-shackling, and sleep deprivation,” wrote Justine Sharrock, author of
Tortured
, a book about soldiers who were required to participate in brutal interrogations or detention. “But when used in combination, as is
often done . . . sometimes daily over the course of years—these techniques are torture,” wrote Sharrock.
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Susan J. Crawford, appointed as the convening authority for Guantánamo military commissions in 2007, put it this way: “We tortured Qahtani,” she told Bob Woodward of the
Washington Post.
Crawford, a former judge who was assigned to review and evaluate cases, determined that al Qahtani could not be tried because of the torture. “This was not any one particular act; this was just a combination of things that had a medical impact on him,” she said.
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After Rumsfeld issued the December 2 list, Navy General Counsel Alberto Mora, who had previously objected to the proposed interrogation techniques, continued to express concerns. He said that the interrogation techniques authorized by Rumsfeld could “rise to the level of torture.” He put his objections in a draft legal memo delivered on January 15, 2003, to William Haynes, the Department of Defense general counsel, and warned that he would sign it later that day unless the techniques were withdrawn. Before that could happen, Rumsfeld rescinded the December 2 memo, according to the report of the Senate Armed Services Committee.
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Unfortunately, the rescission was not well known at Guantánamo or in Afghanistan, although the original December 2 memo seemed to be everywhere. As a result, little changed. And rather than adjust his intentions, Rumsfeld engineered a way to get around the objections of Mora and his military colleagues. Behind their backs, he got Yoo to write a new torture memo that applied to the military, despite their objections, and replicated the language of the torture memos of August 1, 2002. A new list of enhanced interrogation techniques generated by Rumsfeld in April 2003 included extremes of temperature and light, dietary manipulation, sleep deprivation, removal of clothing, prolonged standing, hooding, slaps, exploitation of aversions. Rumsfeld also suggested that he would consider requests for other methods from interrogators in the field.

When U.S. tanks thundered into Iraq on March 19, 2003, President Bush said that the Geneva Conventions would apply to the Iraq conflict. But, in reality, President Bush's memorandum of February 7, 2002, eclipsed this statement; the poison was not poured back into the bottle. The mistreatment grew.

Prisoner abuse spread readily when interrogation officers from both Afghanistan and Guantánamo who were familiar with the enhanced interrogation techniques or Rumsfeld's December 2 memo were sent to Iraq to
oversee operations or to train interrogators. They brought with them the torture techniques they had been authorized to use by Secretary Rumsfeld and their observation of aggressive CIA interrogations.

Deplorable conditions for people detained in the war in Iraq first came to the attention of the International Committee of the Red Cross in its role as monitor of the Geneva Conventions during visits in late 2003. In February 2004, the ICRC reported “systemic” mistreatment of prisoners in U.S. custody in Iraq, including “holding people naked in a completely dark and empty cell,” “beatings with hard objects,” “slapping, punching, kicking with knees or feet,” “pressing the face into the ground with boots.” ICRC reports are delivered to the authorities holding the prisoners.

That same month, U.S. Major General Antonio Taguba completed an investigation for his superiors in the military on Abu Ghraib, where the United States crowded seven thousand prisoners into Saddam Hussein's old chamber of horrors. Like the ICRC, Taguba found “systemic and illegal abuse of detainees” by U.S. military personnel including slapping, punching, kicking, rape, use of military dogs, and “sadistic, blatant, and wanton criminal abuses.” Taguba delivered this report to his commanders.
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On April 28, 2004, when the Abu Ghraib photographs showed up on television, the world got a look at what the International Committee of the Red Cross and Major General Taguba had seen. The images became indelible.
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President Bush responded by appointing Secretary Rumsfeld, himself a malefactor, to look into what happened. Not surprisingly, investigations avoided scrutinizing accountability at the top.
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Nor were examinations conducted of CIA activities. Still, once reports were made, they showed serious and systemic wrongdoing. For example, the Schlesinger Report, released in August 2004, described “widespread” and “serious” abuse of prisoners. It found “fundamental failures throughout all levels of the command,” and “institutional and personal responsibility at high levels.”
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Several low-level military personnel were prosecuted, convicted, and sent to jail. No high-level personnel were prosecuted or penalized.

It took another two years, until September 6, 2006, before President Bush publicly acknowledged in an address to Americans that an “alternative” system of interrogation had been used against fourteen “high value” detainees.
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These prisoners were transferred from undisclosed “black sites” and foreign prisons to Guantánamo Bay.

Without flinching, the president insisted that the interrogation techniques used on the “high value” detainees “were tough, and they were safe, and lawful, and necessary.”
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Videotapes that could support his view, however, were destroyed by the CIA,
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and the White House refused to release photographs from interrogation and detention centers.

When asked if President Bush knew the details of the interrogation system, former vice president Cheney told
Face the Nation
on May 10, 2009: “I certainly, yes, have every reason to believe he knew—he knew a great deal about the program. He basically authorized it. I mean, this was a presidential-level decision. And the decision went to the president. He signed off on it.”
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Despite the secrecy that had attempted to hide the torture protocols, a large and growing body of information began to surface into public view. The scope of the abuse has been described—in excruciating detail—by Congressional committees, CIA documents, Justice Department legal opinions, the International Committee of the Red Cross, lawsuits in Italy, Spain, Germany, and England, interviews of released detainees and U.S. employee witnesses, legal filings in the United States, and accounts by journalists or experts, including Jane Mayer, Karen Greenberg, Seymour Hersh, Philippe Sands, Andy Worthington, Mark Danner, and others. Several of those subjected to the torture and cruel treatment—Maher Arar and Khaled El-Masri are two—were completely innocent of any connection to terrorism or wrongdoing. A not insubstantial number of other detainees were bystanders who were turned in for cash bounties that the United States had offered.

In February 2007, the International Committee of the Red Cross completed its investigation of the treatment of the fourteen “high value” detainees. The ICRC concluded that they had been subjected to “an arbitrary deprivation of liberty and enforced disappearance, in contravention of international law. Moreover, and in addition to the continuous solitary confinement and incommunicado detention which itself was a form of ill-treatment, twelve of the fourteen alleged that they were subjected to systemic physical and/or psychological ill-treatment.” This treatment, the ICRC said, “either singly or in combination, constituted torture.” It expressed concern about possibly ongoing secret prison detention.
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The inspector general of the CIA perhaps best described what the mounting piles of information were showing in his report in 2004. “The
EITs [enhanced interrogation techniques] used by the Agency . . . are inconsistent with the public policy positions that the United States has taken regarding human rights,” he wrote.
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But President Bush continued to authorize torture. In July 2007, he signed an executive order permitting the CIA to avoid laws, new and old, that would restrain its handling of detainees or prohibit the use of torture techniques.
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In June 2008, Major General Taguba, who investigated detainee treatment at Abu Ghraib, wrote the preface to a report released by Physicians for Human Rights,
Broken Laws, Broken Lives.
Retired by then, General Taguba didn't hold back on his opinion: “There is no longer any doubt as to whether the current [Bush] administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”
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As noted above, the two laws that most directly apply to torture and mistreatment of detainees are the War Crimes Act of 1996 and the “anti-torture law.”

Confronted with these laws and worried about prosecution, Bush administration officials plotted a course of legalistic maneuvers intended to protect themselves. Rather than enforce the law, as required by the president's oath of office, Bush officials warped the law to conform to their deviant behavior. They succeeded in many ways. Yet, because the president and his team overstepped the bounds of the law so profusely, they may still be caught in their own web.