The New Yorker in its February 27th, 2006 magazine has published an article by
Jane Mayer which is the most complete behind the scenes presentation of how and who within the Bush Administration derailed an internal effort to stop the abuse and torture of detainees and prisoners. The connections between The Pentagon operatives and the office of the Vice President are detailed to an extent I have not seen before. There was clear and concerted effort to institute the policies that produced torture.
There is a hero, Alberto J. Mora, former Navy general counsel, who battled until his departure, to make sure that the policy of this administration to authorize cruelty be reversed.
Three years ago he wrote a memo which was marked secret but not classified and its 22 pages detailed the chronological accounting and a warning of
the consequences of Bush's decision on February, 2002 to bypass the Geneva conventions that prohibit torture and "outrages upon personal dignity, in particular humiliating and degrading treatment". His main contention that proved to be prophetic was that the refusal to outlaw cruelty was the invitation and green lighting of torture. Even more importantly, he challenged the fundamental groundwork that allowed these types of abuses which is the legal framework for the imperial Presidency.
The memo is a chronological account, submitted on July 7, 2004, to Vice Admiral Albert Church, who led a Pentagon investigation into abuses at the U.S. detention facility at Guantánamo Bay, Cuba. It reveals that Mora's criticisms of Administration policy were unequivocal, wide-ranging, and persistent. Well before the exposure of prisoner abuse in Iraq's Abu Ghraib prison, in April, 2004, Mora warned his superiors at the Pentagon about the consequences of President Bush's decision, in February, 2002, to circumvent the Geneva conventions, which prohibit both torture and "outrages upon personal dignity, in particular humiliating and degrading treatment." He argued that a refusal to outlaw cruelty toward U.S.-held terrorist suspects was an implicit invitation to abuse. Mora also challenged the legal framework that the Bush Administration has constructed to justify an expansion of executive power, in matters ranging from interrogations to wiretapping. He described as "unlawful," "dangerous," and "erroneous" novel legal theories granting the President the right to authorize abuse. Mora warned that these precepts could leave U.S. personnel open to criminal prosecution.
In important ways, Mora's memo is at odds with the official White House narrative. In 2002, President Bush declared that detainees should be treated "humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles" of the Geneva conventions. The Administration has articulated this standard many times. Last month, on January 12th, Secretary of Defense Donald Rumsfeld, responding to charges of abuse at the U.S. base in Cuba, told reporters, "What took place at Guantánamo is a matter of public record today, and the investigations turned up nothing that suggested that there was any policy in the department other than humane treatment." A week later, the White House press spokesman, Scott McClellan, was asked about a Human Rights Watch report that the Administration had made a "deliberate policy choice" to abuse detainees. He answered that the organization had hurt its credibility by making unfounded accusations. Top Administration officials have stressed that the interrogation policy was reviewed and sanctioned by government lawyers; last November, President Bush said, "Any activity we conduct is within the law. We do not torture." Mora's memo, however, shows that almost from the start of the Administration's war on terror the White House, the Justice Department, and the Department of Defense, intent upon having greater flexibility, charted a legally questionable course despite sustained objections from some of its own lawyers.
Who is this rebel?
Mora was a well-liked and successful figure at the Pentagon. Born in Boston in 1952, he is the son of a Hungarian mother, Klara, and a Cuban father, Lidio, both of whom left behind Communist regimes for America. Klara's father, who had been a lawyer in Hungary, joined her in exile just before the Soviet Union took control. From the time Alberto was a small boy, Klara Mora told me, he heard from his grandfather the message that "the law is sacred." For the Moras, injustice and abuse were not merely theoretical concepts. One of Mora's great-uncles had been interned in a Nazi concentration camp, and another was hanged after having been tortured. Mora's first memory, as a young child, is of playing on the floor in his mother's bedroom, and watching her crying as she listened to a report on the radio declaring that the 1956 anti-Communist uprising in Hungary had been crushed. "People who went through things like this tend to have very strong views about the rule of law, totalitarianism, and America," Mora said.
He is a admirer of President Reagan and a political appointee in both the first and second Bush administrations. He is a life long supporter of the Navy and a supporter of both the war on terror and both Bush wars. How did this unlikely hero come to battle his administration and ultimately score several belated wins? The story is one worth reading and retelling.
Mora first learned about the problem of detainee abuse on December 17, 2002, when David Brant approached him with accusations of wrongdoing at Guantánamo. As head of the Naval Criminal [Investigative] Service, Brant often reported to Mora but hadn't dealt with him on anything so sensitive. "I wasn't sure how he would react," Brant, a tall, thin man with a mustache, told me. Brant had already conveyed the allegations to Army leaders, since they had command authority over the military interrogators, and to the Air Force, but he said that nobody seemed to care. He therefore wasn't hopeful when he went to Mora's office that afternoon.
The details that Brant would share had a powerful effect on Mora. His reaction was that the treatment was illegal and posed a great threat to the stated goals of the administration in the war on terror and possibly opened individuals to prosecution on war crimes.
Much of Brant's information had been supplied by an N.C.I.S. psychologist, Michael Gelles, who worked with the C.I.T.F. and had computer access to the Army's interrogation logs at Guantánamo. Brant told me that Gelles "is phenomenal at unlocking the minds of everyone from child abusers to terrorists"; he took it seriously when Gelles described the logs as shocking.
The logs detailed, for example, the brutal handling of a Saudi detainee, Mohammed al-Qahtani, whom an F.B.I. agent had identified as the "missing twentieth hijacker"--the terrorist who was supposed to have been booked on the plane that crashed in a Pennsylvania field. Qahtani was apprehended in Afghanistan a few months after the terrorist attacks.
Qahtani had been subjected to a hundred and sixty days of isolation in a pen perpetually flooded with artificial light. He was interrogated on forty-eight of fifty-four days, for eighteen to twenty hours at a stretch. He had been stripped naked; straddled by taunting female guards, in an exercise called "invasion of space by a female"; forced to wear women's underwear on his head, and to put on a bra; threatened by dogs; placed on a leash; and told that his mother was a whore. By December, Qahtani had been subjected to a phony kidnapping, deprived of heat, given large quantities of intravenous liquids without access to a toilet, and deprived of sleep for three days. Ten days before Brant and Mora met, Qahtani's heart rate had dropped so precipitately, to thirty-five beats a minute, that he required cardiac monitoring.
Brant told me that he had gone to Mora because he didn't want his team of investigators to "in any way observe, condone, or participate in any level of physical or in-depth psychological abuse. No slapping, deprivation of water, heat, dogs, psychological abuse. It was pretty basic, black and white to me." He went on, "I didn't know or care what the rules were that had been set by the Department of Defense at that point. We were going to do what was morally, ethically, and legally permissible." Recently declassified e-mails and orders obtained by the American Civil Liberties Union document Brant's position, showing that all C.I.T.F. personnel were ordered to "stand clear and report" any abusive interrogation tactics.
What was it in the documents that Mora began to review that proved most problematic? His view was much more expansive than we have taken on these pages and really hit me as the words of a true patriot that love the country beyond all the opportunities that he had before him in a role that was described as akin to a four star general.
The day after Mora's first meeting with Brant, they met again, and Brant showed him parts of the transcript of Qahtani's interrogation. Mora was shocked when Brant told him that the abuse wasn't "rogue activity" but was "rumored to have been authorized at a high level in Washington." The mood in the room, Mora wrote, was one of "dismay." He added, "I was under the opinion that the interrogation activities described would be unlawful and unworthy of the military services." Mora told me, "I was appalled by the whole thing. It was clearly abusive, and it was clearly contrary to everything we were ever taught about American values."
Mora thinks that the media has focused too narrowly on allegations of U.S.-sanctioned torture. As he sees it, the authorization of cruelty is equally pernicious. "To my mind, there's no moral or practical distinction," he told me. "If cruelty is no longer declared unlawful, but instead is applied as a matter of policy, it alters the fundamental relationship of man to government. It destroys the whole notion of individual rights. The Constitution recognizes that man has an inherent right, not bestowed by the state or laws, to personal dignity, including the right to be free of cruelty. It applies to all human beings, not just in America--even those designated as `unlawful enemy combatants.' If you make this exception, the whole Constitution crumbles. It's a transformative issue."
Mora said that he did not fear reprisal for stating his opposition to the Administration's emerging policy. "It never crossed my mind," he said. "Besides, my mother would have killed me if I hadn't spoken up. No Hungarian after Communism, or Cuban after Castro, is not aware that human rights are incompatible with cruelty." He added, "The debate here isn't only how to protect the country. It's how to protect our values."
After the second meeting with Brant, Mora called his friend Steven Morello, the general counsel of the Army, and asked him if he knew anything about the abuse of prisoners at Guantánamo. Mora said that Morello answered, "I know a lot about it. Come on down."
In Morello's office, Mora saw what he now refers to as "the package"--a collection of secret military documents that traced the origins of the coercive interrogation policy at Guantánamo. It began on October 11, 2002, with a request by J.T.F.-170's commander, Major General Michael Dunlavey, to make interrogations more aggressive. A few weeks later, Major General Geoffrey Miller assumed command of Guantánamo Bay, and, on the assumption that prisoners like Qahtani had been trained by Al Qaeda to resist questioning, he pushed his superiors hard for more flexibility in interrogations. On December 2nd, Secretary of Defense Rumsfeld gave formal approval for the use of "hooding," "exploitation of phobias," "stress positions," "deprivation of light and auditory stimuli," and other coercive tactics ordinarily forbidden by the Army Field Manual. (However, he reserved judgment on other methods, including "waterboarding," a form of simulated drowning.) In Mora's memo, Morello is quoted as saying that "we tried to stop it." But he was told not to ask questions.
The next steps that Mora took basic set in course a battle that would last several years and would reveal how high up in the Bush administration the efforts to create a legal ground work for torture extended. There are many familiar faces and much of what has been written on the workings of the office of the Vice President and Secretary Rumsfeld becomes much clearer. The battle was first engaged with William J. Haynes II, the general counsel of the Department of Defense. Mora thought initially it was a mistake that just needed to be corrected. There was no legal backing for the new directives and great risk for the government once they thought it over.
In confronting Haynes, Mora was engaging not just the Pentagon but also the Vice-President's office. Haynes is a protégé of Cheney's influential chief of staff, David Addington. Addington's relationship with Cheney goes back to the Reagan years, when Cheney, who was then a representative from Wyoming, was the ranking Republican on a House select committee investigating the Iran-Contra scandal. Addington, a congressional aide, helped to write a report for the committee's Republican minority, arguing that the law banning covert aid to the Contras--the heart of the scandal--was an unconstitutional infringement of Presidential prerogatives. Both men continue to embrace an extraordinarily expansive view of executive power. In 1989, when Cheney was named Secretary of Defense by George H. W. Bush, he hired Addington as a special assistant, and eventually appointed him to be his general counsel. Addington, in turn, hired Haynes as his special assistant and soon promoted him to general counsel of the Army.
After George W. Bush took office, Addington came to the White House with Cheney, and Haynes took his boss's old job at the Pentagon. Addington has played a central part in virtually all of the Administration's legal strategies, including interrogation and detainee policies. The office of the Vice-President has no statutory role in the military chain of command. But Addington's tenacity, willingness to work long hours, and unalloyed support from Cheney made him, in the words of another former Bush White House appointee, "the best infighter in the Administration." One former government lawyer described him as "the Octopus"--his hands seemed to reach into every legal issue.
Haynes rarely discussed his alliance with Cheney's office, but his colleagues, as one of them told me, noticed that "stuff moved back and forth fast" between the two power centers. Haynes was not considered to be a particularly ideological thinker, but he was seen as "pliant," as one former Pentagon colleague put it, when it came to serving the agenda of Cheney and Addington. In October, 2002, almost three months before his meeting with Mora, Haynes gave a speech at the conservative Federalist Society, disparaging critics who accused the Pentagon of mistreating detainees. A year later, President Bush nominated him to the federal appeals court in Virginia. His nomination is one of several that have been put on hold by Senate Democrats.
In his meeting with Haynes, Mora told me, he said that, whatever its intent, what Rumsfeld's memo permitted was "torture."
According to Mora, Haynes replied, "No, it isn't."
Mora asked Haynes to think about the techniques more carefully. What did "deprivation of light and auditory stimuli" mean? Could a prisoner be locked in a completely dark cell? If so, could he be kept there for a month? Longer? Until he went blind? What, precisely, did the authority to exploit phobias permit? Could a detainee be held in a coffin? What about using dogs? Rats? How far could an interrogator push this? Until a man went insane?
Mora drew Haynes's attention to a comment that Rumsfeld had added to the bottom of his December 2nd memo, in which he asked why detainees could be forced to stand for only four hours a day, when he himself often stood "for 8-10 hours a day." Mora said that he understood that the comment was meant to be jocular. But he feared that it could become an argument for the defense in any prosecution of terror suspects. It also could be read as encouragement to disregard the limits established in the memo. (Colonel Lawrence Wilkerson, a retired military officer who was a chief of staff to former Secretary of State Colin Powell, had a similar reaction when he saw Rumsfeld's scrawled aside. "It said, `Carte blanche, guys,' " Wilkerson told me. "That's what started them down the slope. You'll have My Lais then. Once you pull this thread, the whole fabric unravels.")
Haynes said little during the meeting with Mora, but Mora left the room certain that Haynes would realize he had been too hasty, and would get Rumsfeld to revoke the inflammatory December 2nd memo. Mora told me, "My feeling was it was just a blunder." The next day, he left Washington for a two-week Christmas holiday.
When he got back the situation had not changed and there had been some initial reporting in the New York Time on suspected abuse at Gitmo.
Upon returning to work on January 6, 2003, Mora was alarmed to learn from Brant that the abuse at Guantánamo had not stopped. In fact, as Time reported last year, Qahtani had been stripped and shaved and told to bark like a dog. He'd been forced to listen to pop music at an ear-splitting volume, deprived of sleep, and kept in a painfully cold room. Between confessing to and then recanting various terrorist plots, he had begged to be allowed to commit suicide.
Mora suspected that such abuse was a deliberate policy, and widened his internal campaign in the hope of building a constituency against it. In the next few days, his arguments reached many of the Pentagon's top figures: Deputy Secretary of Defense Paul Wolfowitz; Captain Jane Dalton, the legal adviser to the Joint Chiefs of Staff; Victoria Clarke, who was then the Pentagon spokeswoman; and Rumsfeld.
Meanwhile, on January 9, 2003, Mora had a second meeting with Haynes. According to Mora's memo, when he told him how disappointed he was that nothing had been done to end the abuse at Guantánamo, Haynes explained that "U.S. officials believed the techniques were necessary to obtain information," and that the interrogations might prevent future attacks against the U.S. and save American lives. Mora acknowledged that he could imagine "ticking bomb" scenarios, in which it might be moral--though still not legal--to torture a suspect. But, he asked Haynes, how many lives had to be saved to justify torture? Thousands? Hundreds? Where do you draw the line? To decide this question, shouldn't there be a public debate?
Mora said he doubted that Guantánamo presented such an urgent ethical scenario in any event, since most of the detainees had been held there for more than a year. He also warned Haynes that the legal opinions the Administration was counting on to protect itself might not withstand scrutiny--such as the notion that Guantánamo was beyond the reach of U.S. courts. (Mora was later proved right: in June, 2004, the Supreme Court, in Rasul v. Bush, ruled against the Administration's argument that detainees had no right to challenge their imprisonment in American courts. That month, in a related case, Justice Sandra Day O'Connor declared that "a state of war is not a blank check for the President.")
Mora told Haynes that, if the Pentagon's theories of indemnity didn't hold up in the courts, criminal charges conceivably could be filed against Administration officials. He added that the interrogation policies could threaten Rumsfeld's tenure, and could even damage the Presidency. "Protect your client!" he said.
Haynes is a subsequent communication informed Mora that Rumsfeld was rescinding his authorizations for the treatment of prisoners. Mora thought the battle was over but it was really escalating and a end run was engineered to maintain the cruel treatment of prisoners.
A week later, Mora was shown a lengthy classified document that negated almost every argument he had made. Haynes had outflanked him. He had solicited a separate, overarching opinion from the Office of Legal Counsel, at the Justice Department, on the legality of harsh military interrogations--effectively superseding the working group.
There was only one copy of the opinion, and it was kept in the office of the Air Force's general counsel, Mary Walker, whom Rumsfeld had appointed to head the working group. While Walker sat at her desk, Mora looked at the document with mounting disbelief; at first, he thought he had misread it. There was no language prohibiting the cruel, degrading, and inhuman treatment of detainees. Mora told me that the opinion was sophisticated but displayed "catastrophically poor legal reasoning." In his view, it approached the level of the notorious Supreme Court decision in Korematsu v. United States, in 1944, which upheld the government's internment of Japanese-Americans during the Second World War.
The author of the opinion was John Yoo, a young and unusually influential lawyer in the Administration, who, like Haynes, was part of Addington's circle. (Yoo and Haynes were also regular racquetball partners.) In the past, Yoo, working closely with Addington, had helped to formulate the argument that the treatment of Al Qaeda and Taliban suspects, unlike that of all other foreign enemies, was not covered by the Geneva conventions; Yoo had also helped to write the Torture Memo. Before joining the Administration, Yoo, a graduate of Yale Law School, had clerked for Justice Clarence Thomas and taught law at Berkeley. Like many conservative legal scholars, he was skeptical of international law, and believed that liberal congressional overreaction to the Vietnam War and Watergate had weakened the Presidency, the C.I.A., and the military. However, Yoo took these arguments further than most. Constitutional scholars generally agreed that the founders had purposefully divided the power to wage war between Congress and the executive branch; Yoo believed that the President's role as Commander-in-Chief gave him virtually unlimited authority to decide whether America should respond militarily to a terror attack, and, if so, what kind of force to use. "Those decisions, under our Constitution, are for the President alone to make," he wrote in a law article.
A top Administration official told me that Yoo, Addington, and a few other lawyers had essentially "hijacked policy" after September 11th. "They thought, Now we can put our views into practice. We have the ability to write them into binding law. It was just shocking. These memos were presented as faits accomplis."
In Yoo's opinion, he wrote that at Guantánamo cruel, inhumane, and degrading treatment of detainees could be authorized, with few restrictions.
"The memo espoused an extreme and virtually unlimited theory of the extent of the President's Commander-in-Chief authority," Mora wrote in his account. Yoo's opinion didn't mention the most important legal precedent defining the balance of power between Congress and the President during wartime, Youngstown Sheet & Tube Company v. Sawyer. In that 1952 case, the Supreme Court stopped President Truman from forcing the steel worker's union, which had declared a strike, to continue producing steel needed in the Korean War. The Court upheld congressional labor laws protecting the right to strike, and ruled that the President's war powers were at their weakest when they were challenging areas in which Congress had passed legislation. Torture, Mora reasoned, had been similarly regulated by Congress through treaties it had ratified.
The battles continued unabated until the news of Abu Ghraib became the international embarrassment to the United States.
On April 28, 2004, ten months later, the first pictures from Abu Ghraib became public. Mora said, "I felt saddened and dismayed. Everything we had warned against in Guantánamo had happened--but in a different setting. I was stunned."
He was further taken aback when he learned, while watching Senate hearings on Abu Ghraib on C-SPAN, that Rumsfeld had signed the working-group report--the draft based on Yoo's opinion--a year earlier, without the knowledge of Mora or any other internal legal critics. Rumsfeld's signature gave it the weight of a military order. "This was the first I'd heard of it!" Mora told me. Mora wrote that the Air Force's deputy general counsel, Daniel Ramos, told him that the final working-group report had been "briefed" to General Miller, the commander of Guantánamo, and General James Hill, the head of the Southern Command, months earlier. (The Pentagon confirmed this, though it said that the generals had not seen the full report.) "It was astounding," Mora said. "Obviously, it meant that the working-group report hadn't been abandoned, and that some version of it had gotten into the generals' possession."
The working-group report included a list of thirty-five possible interrogation methods. On April 16, 2003, the Pentagon issued a memorandum to the U.S. Southern Command, approving twenty-four of them for use at Guantánamo, including isolation and what it called "fear up harsh," which meant "significantly increasing the fear level in a detainee." The Defense Department official told me, "It should be noted that there were strong advocates for the approval of the full range of thirty-five techniques," but Haynes was not among them. The techniques not adopted included nudity; the exploitation of "aversions," such as a fear of dogs; and slaps to the face and stomach. However, combined with the legal reasoning in the working-group report, the April memorandum allowed the Secretary to approve harsher methods.
Without Mora's knowledge, the Pentagon had pursued a secret detention policy. There was one version, enunciated in Haynes's letter to Leahy, aimed at critics. And there was another, giving the operations officers legal indemnity to engage in cruel interrogations, and, when the Commander-in-Chief deemed it necessary, in torture. Legal critics within the Administration had been allowed to think that they were engaged in a meaningful process; but their deliberations appeared to have been largely an academic exercise, or, worse, a charade. "It seems that there was a two-track program here," said Martin Lederman, a former lawyer with the Office of Legal Counsel, who is now a visiting professor at Georgetown. "Otherwise, why would they share the final working-group report with Hill and Miller but not with the lawyers who were its ostensible authors?"
The story as told in the New Yorker is the most detailed and persuasive account of the complicity of the top level of the administration in the torture and abuse of detainees and prisoners at CIA and military prisons throughout the world. At the end we hope and assume that there must have been some important lessons learned but maybe not.
Just a few months ago, Mora attended a meeting in Rumsfeld's private conference room at the Pentagon, called by Gordon England, the Deputy Defense Secretary, to discuss a proposed new directive defining the military's detention policy. The civilian Secretaries of the Army, the Air Force, and the Navy were present, along with the highest-ranking officers of each service, and some half-dozen military lawyers. Matthew Waxman, the deputy assistant secretary of defense for detainee affairs, had proposed making it official Pentagon policy to treat detainees in accordance with Common Article Three of the Geneva conventions, which bars cruel, inhumane, and degrading treatment, as well as outrages against human dignity.Going around the huge wooden conference table, where the officials sat in double rows, England asked for a consensus on whether the Pentagon should support Waxman's proposal.
This standard had been in effect for fifty years, and all members of the U.S. armed services were trained to follow it. One by one, the military officers argued for returning the U.S. to what they called the high ground. But two people opposed it. One was Stephen Cambone, the under-secretary of defense for intelligence; the other was Haynes. They argued that the articulated standard would limit America's "flexibility." It also might expose Administration officials to charges of war crimes: if Common Article Three became the standard for treatment, then it might become a crime to violate it. Their opposition was enough to scuttle the proposal.
In exasperation, according to another participant, Mora said that whether the Pentagon enshrined it as official policy or not, the Geneva conventions were already written into both U.S. and international law. Any grave breach of them, at home or abroad, was classified as a war crime. To emphasize his position, he took out a copy of the text of U.S. Code 18.2441, the War Crimes Act, which forbids the violation of Common Article Three, and read from it. The point, Mora told me, was that "it's a statute. It exists--we're not free to disregard it. We're bound by it. It's been adopted by the Congress. And we're not the only interpreters of it. Other nations could have U.S. officials arrested."
The closing notes from the article are very telling:
Mora went on, "It seemed odd to me that the actors weren't more troubled by what they were doing." Many Administration lawyers, he said, appeared to be unaware of history. "I wondered if they were even familiar with the Nuremberg trials--or with the laws of war, or with the Geneva conventions. They cut many of the experts on those areas out. The State Department wasn't just on the back of the bus--it was left off the bus." Mora understood that "people were afraid that more 9/11s would happen, so getting the information became the overriding objective. But there was a failure to look more broadly at the ramifications.
"These were enormously hardworking, patriotic individuals," he said. "When you put together the pieces, it's all so sad. To preserve flexibility, they were willing to throw away our values."
Alberto J. Mora a profile in courage and I recommend his story and the New Yorker article that tells it to you.