A generation from now, historians may look back to April 28, 2004, as the day the United States lost the war in Iraq. On that date, "CBS News" broadcast the first ugly photographs of abuses by American soldiers at Baghdad's Abu Ghraib prison. There were images of a man standing hooded on a box with wires attached to his hands; of guards leering as they forced naked men to simulate sexual acts; of a man led around on a leash by a female soldier; of a dead Iraqi detainee, packed in ice; and more. The pictures had been taken the previous fall by U.S. Army military police soldiers assigned to the prison, but had made it into the hands of Army criminal investigators only months later, when a soldier named Joseph Darby anonymously passed them a CD-ROM full of prison photos. The images aroused worldwide indignation, and illustrated in graphic detail both the lengths to which the United States would go to get intelligence, and the extent to which those efforts had been corrupted by the exigencies of the difficult war in Iraq.
How did we get to that day? One of the most critical steps on the Road to Abu Ghraib (and Guantanamo) was when the President's lawyers, led by one Alberto Gonzalez, concocted a dishonest and despicable legal argument for why the prohibitions against torture do not apply to the United States of America.
But the lawyers--including White House counsel Alberto Gonzales, Defense Department general counsel William Haynes II, Vice President Cheney's counsel David Addington, and Jay Bybee of the Justice Department (who now sits on the Ninth Circuit Court of Appeals)--went further. They advised the president to sign a blanket statement of policy that the men captured in Afghanistan would not be subject to the Geneva Conventions, and that by executive fiat, they would all be declared "unlawful enemy combatants," a category that does not exist in international law. White House, Justice Department and Pentagon lawyers also pushed President Bush to sign a secret finding on Feb. 7, 2002, that would have far-reaching consequences for the nation and the world. "I... determine that none of the provisions of Geneva apply to our conflict with al Qaeda in Afghanistan or elsewhere throughout the world," this document determined, adding that the White House also had "the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time." For all intents and purposes, these memoranda gutted the Geneva Conventions.
Within months, those first legal memoranda were joined by more focused opinions from the administration's top lawyers, each authorizing specific tactics the Bush administration wanted to use in the global war on terrorism. Such tactics, argued the lawyers, didn't run afoul of the Geneva Conventions because the President had already unilaterally declared those conventions null and void with respect to al Qaeda and other terrorist detainees. This opinion also rendered the U.S.'s own federal war-crimes statute impotent, because that law defines a war crime as a violation of the existing international laws of war, including the Geneva Conventions. To be enforced, that law depends on the existence of a Geneva Convention violation; similarly, the Uniform Code of Military Justice prohibits war crimes, but without a Geneva Convention violation, there was no war crime.
The Bush administration's memoranda also took an excruciatingly narrow view of the federal torture statute, essentially defining it out of existence for the purposes of interrogations in Afghanistan and Guantanamo Bay: "A defendant is guilty of torture only if he acts with the express purpose of inflicting severe pain or suffering on a person within his custody or physical control." In other words, interrogation tactics which accidentally result in severe pain or suffering were not enough to merit the label of torture. Only tactics which were specifically intended to cause severe pain and suffering--and performed by professional torturers with the knowledge of how their tactics would affect the body--would fit the definition under federal criminal law. Under this reasoning, amateur interrogators (such as the reserve military police soldiers assigned to Gitmo) could never be guilty because they lacked the skill and experience to know the exact causal links between their tactics and the pain and suffering those tactics would cause. The Justice Department also took the view that only someone who specifically intended to cause extreme pain and suffering, on the level of organ failure and death, would be guilty. This interpretation set a bar so high that virtually no prosecutor would ever be able to meet it in court, and opened the door to any use of coercive interrogation tactics that fell just shy of the "severe pain and suffering" threshhold. Justice's interpretation ensured no U.S. defendants would ever face torture charges and made the U.N. Convention Against Torture a dead letter too.
The Bush administration also chose Guantanamo as the site to hold detainees specifically because it was thought to be outside the reach of U.S. courts--and it was, until the Supreme Court ruled in June 2004 that detainees there had the right to ask a federal court for a writ of habeas corpus. In addition, the federal anti-torture statute excluded from jurisdiction military bases and diplomatic missions, such as Guantanamo and Abu Ghraib, a loophole that would remain open until October 2004 when Congress closed it. Thus, in addition to stripping the detainees themselves of rights, the administration picked a place where the law simply had no force--Gitmo provided the perfect legal black hole in which to house detainees and practice the dark arts of interrogation.
One of the problems cited by the Schlesinger report was the disconnect between tactics authorized at Guantanamo, where "unlawful enemy combatants" were held and the Geneva Conventions did not apply, and the tactics authorized in Iraq where the president had said the Geneva Conventions did apply. As guidance from the top filtered down through several layers of command, it became unclear which methods were appropriate for which location, an ambiguity compounded by the movement of individual interrogators and guard force personnel between the two physical locations. . . . Miller imported a number of the non-Geneva Convention techniques from Cuba to Iraq to assist interrogators in gathering information, and by so doing reportedly turned on a spigot of human intelligence, leading, among other things, to the capture of Saddam Hussein. . . . An after-action report on the "legal lessons learned" from the wars in Afghanistan and Iraq, authored by the Army's Judge Advocate General ("JAG") school, found the same thing: "Detainees are a potential source of valuable information, and the motivation to extract that information through interrogation may sometimes create strong temptation to test the limits of the [law of armed conflict]. Questions often concerned the legality of specific proposed interrogation techniques." Army officers tend to understate these things, especially in after-action reports, so it's no surprise that Gen. Kern and the JAG school phrase their findings so circumspectly. But don't be fooled: This is the military equivalent of shouting from the rooftops.
The memos had another practical effect, which was the evisceration of any legal opposition from the ranks to the proposed methods of interrogations. Military units of a certain size are staffed with JAG officers, chaplains, and other professionals who typically serve as a unit's legal and ethical conscience. . . . Finally, the memos directly affected the junior soldiers, like Pfc. England, who now stand accused of torturing Iraqi prisoners. Every new soldier learns in basic training that he or she must follow lawful orders when they are given. But they also learn they must disobey orders--to kill innocent civilians, for example, or torture detainees--that are unlawful, and they cannot invoke "superior orders" as a defense when those orders are illegal. The junior soldiers now charged with abuses at Abu Ghraib should have objected to any orders to abuse prisoners, because they were patently immoral and unlawful. But in reality, that's easier said than done. After all, the orders to interrogate prisoners by coercion had come from the very highest levels of the administration. (emphasis added)
They had been filtered through every level of the chain of command without objection. Senior administration lawyers with Ivy League credentials and decades of experience had approved these procedures, including some that were startlingly close to those depicted in the Abu Ghraib photographs, such as the use of stress positions and hoods. It may be unrealistic to expect that a junior enlisted soldier such as England, or even her immediate supervisor, Staff Sgt. Ivan Frederick, would have the knowledge or the temerity to contradict such orders when they were given. The effect of the Bush administration's exhaustively creative research into breaking the rules was virtually to ensure that every player in this tragedy went along and followed orders.
And of course that was EXACTLY what was intended. Alberto Gonzales did not turn a blind eye to torture after the fact. Alberto Gonzales deliberately and with premeditation created a legal policy that was designed to foment torture. There simply is no other conclusion that can be reached.
Now, call me old fashioned, but there used to be at least fig leaf of plausible deniability that would be attached to uh - "distasteful" policies. In the past, someone like Gonzalez would have had to take the fall. But in this brave new BushWorld, no one takes the fall for anything. Instead, they get rewarded, promoted. Rumsfeld, Rice, Bush.
And now, to be the chief law enforcement officer of the United States, the man who constructed the legal rationale for a policy of torture. It is a disgrace.
It is an outrage.
