Wednesday, June 09, 2004

The Unraveling Plot

Gradually a narrative is emerging that tells how and where the prisoner abuse and torture in Iraq and Afghanistan first gained impetus. With the discovery of each new memo, letter or other legal document with details of how figures within the White House, Justice Department, State Department and Defense Department began to chart a new course for the United States military and intelligence communities in relation to the Geneva Conventions and their ban on the use of torture, it is becoming increasingly clear how a culture of legal ambiguity and blatant disregard for international law evolved into rampant abuse and torture in the name of the war on terror.

The spurious argument that the torture and abuse of prisoners at multiple locations in Iraq, multiple locations in Afghanistan and the Guantanamo Bay detention center, was the result of a few bad apples at each of these locales that took it upon themselves to abuse and torture prisoners using the same methodologies is appearing more and more unlikely. On the contrary, it is becoming increasingly apparent that there was a sea change in the perception of the legality of the use of torture that was flowing down through the chain of command from as high as the Commander in Chief, and other senior administration figures.

The latest memo to surface was first reported in a Wall Street Journal article that can be found re-printed here. This memo, prepared at the request of Defense Secretary Donald Rumsfeld in April 2003 by a team of legal authorities appointed by the Defense Department's general counsel, William J. Haynes II, comes to the startling conclusion that, legally, the president is not "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 Wall Street Journal article goes on to state that, according to the memo, "The president, despite domestic and international laws constraining the use of torture, has the authority as commander in chief to approve almost any physical or psychological actions during interrogation, up to and including torture...Civilian or military personnel accused of torture or other war crimes have several potential defenses, including the 'necessity' of using such methods to extract information to head off an attack, or 'superior orders,' sometimes known as the Nuremberg defense: namely that the accused was acting pursuant to an order and, as the Nuremberg tribunal put it, no "moral choice was in fact possible."

A copy of the March 6, 2003 draft of the now classified April 2003 report can be found here, courtesy of the Wall Street Journal.

Of course this latest memo, which further lays the groundwork for legal justifications for the use of torture by U.S. military and intelligence personnel, was not the first, or only, such memo produced by the administration's legal advisers and policy makers. Today's New York Times contains a comprehensive listing of several of the memos and letters, complete with synopses of their content, located here.

The first memo, prepared by the Justice Department on January 9, 2002, "provided legal arguments to support administration officials' assertions that the Geneva Conventions did not apply to detainees from the war in Afghanistan."

The next memo, prepared by White House counsel Alberto Gonzalez on January 25, 2002, "said that the Justice Department's advice in the Jan. 9 memorandum was sound and that Mr. Bush should declare the Taliban and Al Qaeda outside the coverage of the Geneva Conventions. That would keep American officials from being exposed to the federal War Crimes Act, a 1996 law that carries the death penalty."

Then, in August of 2002, "A memorandum from the Office of Legal Counsel in the Justice Department provided a rationale for using torture to extract information from Qaeda operatives. It provided complex definitions of torture that seemed devised to allow interrogators to evade being charged with that offense."

And there is, of course, the April 2003 memo, referenced above, that "declare[s] that President Bush was not bound by either an international treaty prohibiting torture or by a federal anti-torture law because he had the authority as commander in chief to approve any technique needed to protect the nation's security. The memorandum also said that executive branch officials, including those in the military, could be immune from domestic and international prohibitions against torture for a variety of reasons, including a belief by interrogators that they were acting on orders from superiors 'except where the conduct goes so far as to be patently unlawful.'"

Also in April 2003, there was "A memorandum from Secretary of Defense Donald H. Rumsfeld to Gen. James T. Hill [that] outlined 24 permitted interrogation techniques, 4 of which were considered stressful enough to require Mr. Rumsfeld's explicit approval. Defense Department officials say it did not refer to the legal analysis" of the previous April memo.

Further, a letter dated December 24, 2003, "to the International Committee of the Red Cross over the signature of Brig. Gen. Janis Karpinski was prepared by military lawyers. The letter, a response to the Red Cross's concern about conditions at Abu Ghraib, contended that isolating some inmates at the prison for interrogation because of their significant intelligence value was a 'military necessity,' and said prisoners held as security risks could legally be treated differently from prisoners of war or ordinary criminals."

Finally, as noted by the Times article, there are other memos that have only been partially disclosed. "These include a memorandum that provided advice to interrogators to shield them from liability from the Convention Against Torture, an international treaty and the Anti-Torture Act, a federal law. This memorandum provided what has been described as a script in which officials were advised that they could avoid responsibility if they were able to plausibly contend that the prisoner was in the custody of another government and that the United States officials were just getting the information from the other country's interrogation. The memorandum advised that for this to work, the United States officials must be able to contend that the prisoner was always in the other country's custody and had not been transferred there. International law prohibits the 'rendition' of prisoners to countries if the possibility of mistreatment can be anticipated."

Not all voices within the administration approved of this radical change in course with regard to sanctioning the use of torture in interrogations, however. As usual, though, these dissenting opinions emanated from the State Department, and once again Colin Powell was overruled.

In a memorandum to the White House, prepared on January 26, 2002, "Secretary of State Colin L. Powell said the advantages of applying the Geneva Conventions far outweighed their rejection. He said that declaring the conventions inapplicable would 'reverse over a century of U.S. policy and practice in supporting the Geneva Conventions and undermine the protections of the laws of war for our troops.' He also said it would 'undermine public support among critical allies.'"

Also along this train of thought, a memorandum written on February 2, 2002 by William H. Taft IV, the State Department's legal adviser, to Mr. Gonzales warned that the broad rejection of the Geneva Conventions posed several problems. "'A decision that the conventions do not apply to the conflict in Afghanistan in which our armed forces are engaged deprives our troops there of any claim to the protection of the conventions in the event they are captured.' An attachment to this memorandum, written by a State Department lawyer, showed that most of the administration's senior lawyers agreed that the Geneva Conventions were inapplicable. The attachment noted that C.I.A. lawyers asked for an explicit understanding that the administration's public pledge to abide by the spirit of the conventions did not apply to its operatives."

Given the background that this extensive legal reasoning provided, consider these facts (as layed out expertly by fellow bloggist Publius):

"(1) Rumsfeld personally approved "aggressive interrogation techniques" requested by General Miller in April '03; and that (2) Miller had been sent to Abu Ghraib from Gitmo months earlier to "Gitmo-ize" the prison. Let's also not forget that, according to Sy Hersh, Rumsfeld approved "Copper Green" - a top secret interrogation program designed for al Qaeda - for use in Iraq. Hersh explained:

"Copper Green encouraged physical coercion and sexual humiliation of Iraqi prisoners in an effort to generate more intelligence about the growing insurgency in Iraq. A senior C.I.A. official, in confirming the details of this account last week, said that the operation stemmed from Rumsfeld’s long-standing desire to wrest control of America’s clandestine and paramilitary operations from the C.I.A."

In addition, remember that after General Sanchez denied knowledge of the prison abuse, one of the accused soldier's lawyers stated at a hearing that Sanchez was present "during some 'interrogations and/or allegations of the prisoner abuse.'"

And now, the granddaddy of them all. Today's Washington Post explains:

The head of the interrogation center at the Abu Ghraib prison in Iraq told an Army investigator in February that he understood some of the information being collected from prisoners there had been requested by "White House staff," according to an account of his statement obtained by The Washington Post."

As the fog of war disperses, the truth is revealed. How long can the charade persist that seven low ranking soldiers are the only parties that bear responsibility for the abuse, torture and death of Iraqi and Afghani detainees?

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