You can read General Powell's memo refuting Yoo's opinion that the Geneva Convention didn't apply to al Qaeda and Taliban, attachment here:
Bush disregarded Powell's opinion to follow the Geneva Convention.
THE KEY TO THE TORTURE POLICY: On February 7, 2002 Bush issues his memorandum stating that al Qaeda and Taliban prisoners will not be protected under the laws and treaties of the Geneva Convention III (GPW).
Disregarding the Geneva Convention put torture on the table with the Decider's memo.
Powell did participate and he advised Bush to follow the Geneva Convention law; however, General Powell, the only member of the President's high level cabinet with an extensive record serving in the military, was disregarded.
In response to John Yoo's January 9, 2002 "Geneva Convention III doesn't apply to AQ and Taliban memo, which you can read here:
And in response to Alberto Gonzales' memo which you can read here:
And in which Gonzales states
The Secretary of State has requested that you reconsider that decision.
UPDATE: Actually the Gonzales memo was written by David Addington, pased to Timothy Flanigan, who passed it to Gonzales, who signed it. See January 25, 2002 section of:
Collin Powell writes a memo to Gonzales and Stephen Hadley, dated January 26, 2002,
disputing the January 25 Gonzales memo urging President Bush to reconsider adhering to the GPW . Hadley, you may recall, is responsible for keeping the claim about Iraq’s quest for nuclear weapons material in Bush’s January 28, 2003 State of the Union Address.
You can read Powell's memo and attachment here:
Also, if you go to page xv of this Senate Armed Services Report, it is stated that the President's cabinet was involved in the discussion in the early spring of 2002:
Mr. Haynes was not the only senior official considering new interrogation techniques for use against detainees. Members of the President's Cabinet and other senior officials attended meetings in the White House where specific interrogation techniques were discussed.
President Bush, the Decider and Commander-in-Chief decides to disregard Powell's opinion and writes his "Disregard Geneva Convention III" memo on February 7, 2002.
FEBRUARY 7, 2002 - THE BUSH 'DECIDER' MEMO NO ONE EVER SEEMS TO MENTION:
February 7, 2002 President Bush signed a memorandum stating that the Third Geneva Convention did not apply to the conflict with al Qaeda and concluding that Taliban detainees were not entitled to prisoner of war status or the legal protections…(p. xiii, paragraph 1-3)
Bush writes, “I have 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.” Though not scheduled for declassification until 2012, the directive will be released by the White House in June 2004 to demonstrate that the president never authorized torture against detainees from the wars in Afghanistan and Iraq.
Yet, according to Colin Powell’s chief of staff, Larry Wilkerson, sometime after the Bush memo is issued, Vice President Cheney and Defense Secretary Rumsfeld decide to ignore the portions promising humane treatment for prisoners. “In going back and looking at the deliberations,” Wilkerson later recalls, “it was clear to me that what the president had decided was one thing and what was implemented was quite another thing.
And, President George Bush signs a secret order authorizing the CIA to set up a network of secret detention and interrogation centers outside the United States where high value prisoners can be interrogated “with unprecedented harshness.” [NEWSWEEK, 5/24/2004] This takes place shortly after February 7, 2002, when Bush declared that al-Qaeda and Taliban prisoners were not subject to the Geneva Convention (see February 7, 2002). The first secret CIA prison will begin operating in Thailand in March 2002 (see March 2002).
See February 7, 2002 section of:
With the Bush Commander-in-Chief memo in hand, DOD accepts the SERE interrogation techiniques proposal from James Mitchell and Bruce Jesson:
FEBRUARY 12, 2002 PRIVATE CONTRACTOR SUBMITS TORTURE PLAN
The two men wrote an initial recommendation of measures designed to break the resistance of al-Qaida prisoners. On Feb. 12, 2002 they sent the paper to JPRA Commander Colonel John "Randy" Moulton who forwarded it to his chain of command at JFCOM.
And why were they pushing to finalize the decision to disregard Geneva III and have the enhanced SERE interrogation methods in place? Speculating, I believe it is because they had intel on the whereabouts of Abu Zubaydah and needed the policy in place before they moved to capture him. Reading the documents and timeline, is it reasonble to also speculate the decision to torture Abu Zubaydah was made prior to his capture? Which they did:
MARCH 28, 2002, FAISALABAD, PAKISTAN
At 2 a.m., FBI agents and Pakistani police units raided a two-story house on the outskirts of the city, arresting Abu Zubaydah, an al-Qaida logistics expert. The Americans had their most important prisoner to date. At the time, they believed that Abu Zubaydah was the number-four man in the al-Qaida hierarchy.
The arrest of Abu Zubaydah was the source of great nervousness in Washington. "Now that we had an undoubted resource in our hands -- the highest-ranking al-Qaida official captured to date -- we opened discussions within the National Security Council as to how to handle him, since holding and interrogating large numbers of al-Qaida operatives has never been part of our plan," former CIA Director George Tenet later wrote in his memoir:
On March 29, 2002, a day after the Zubaydah arrest, the retired SERE torture resistence instructor, James Mitchell, closed his new business. He and the SERE Senior Psychologist, Bruce Jesson, who would resign from military service a few months later, founded a new company. The men became contractors for the CIA, charging a rate of $1,000 (€746) a day, not including special fees.
The legal authority to conduct these types of interrogations are unclear. The CIA is being advised by Michael Chertoff at the Justice Department, but there will be no formal legal opinion permitting the techniques until August 2002.
[NEW YORK TIMES, 9/10/2006]
In April, 2002 Mitchell and Jesson presented their first draft, "The Exploitation Draft Plan," of a new interrogation program to the CIA and proposed that an "exploitation facility" should be established (GITMO?) As of April, 2002 Jesson is still working at SERE, Spokane, Washington. Tab #2
SERE inquiries began in December, 2001.
(see page xiii, paragraph 2 of the www.scribd.com doc below)
Between December, 2001 and April, 2002 a program was pursued, policies to disregard Geneva were finalized with President Bush's February 7, 2002 memo, a draft SERE interrogation program was submitted by Mitchell and Jesson on February 12, 2002, and the final draft was submitted in April, 2002 shortly after Zubaydah's capture.
Finalization of the program wasn't completed until August, 2002 with the Bybee memo:
Thereafter, according to the NY Times, The C.I.A. officers used waterboarding at least 83 times in August 2002 against Abu Zubaydah, according to a 2005 Justice Department legal memorandum.
There is no official record before October, 2002 of Rumsfeld signing off on the SERE interrogation techniques yet:
OCTOBER 11, 2002 - Secretary of Defense Rumsfeld Approves Aggressive Techniques (U)
With respect to GTMO’s October 11, 2002 request to use aggressive interrogation
techniques, Mr. Haynes said that “there was a sense by the DoD Leadership that this decision was taking too long” and that Secretary Rumsfeld told his senior advisors “I need a recommendation.”
On December 2, 2002, Secretary Rumsfeld signed Mr. Haynes’s recommendation,
adding a handwritten note that referred to limits proposed in the memo on the use of stress positions: “I stand for 8-10 hours a day. Why is standing limited to 4 hours?”
DoD Working Group Ignores Military Lawyers and Relies on OLC (U)
On January 15, 2003, the same day he rescinded authority for GTMO to use
aggressive techniques, Secretary Rumsfeld directed the establishment of a “Working Group” to review interrogation techniques.
For the next few months senior military and civilian lawyers tried, without success, to have their concerns about the legality of aggressive techniques reflected in the Working Group’s report. Their arguments were rejected in favor of a legal opinion from the Department of Justice’s Office of Legal Counsel’s (OLC) John Yoo.
Mr. Yoo’s opinion, the final version of which was dated March 14, 2003, had been requested by Mr. Haynes at the initiation of the Working Group process, and repeated much of what the first Bybee memo had said six months earlier.
In mid-August 2003, an email from staff at Combined Joint Task Force 7 (CJTF-7) headquarters in Iraq requested that subordinate units provide input for a “wish list” of interrogation techniques, stated that “the gloves are coming off,” and said “we want these detainees broken.”
On September 14, 2003 the Commander of CJTF-7, Lieutenant General Ricardo
Sanchez, issued the first CJTF-7 interrogation SOP. That SOP authorized interrogators in Iraq to use stress positions, environmental manipulation, sleep management, and military working dogs in interrogations. Lieutenant General Sanchez issued the September 14, 2003 policy with the knowledge that there were ongoing discussions about the legality of some of the approved techniques.
If you recall, after the release of the Abu Ghraib pictures, Lt. General Ricardo Sanchez was ‘shifted and the officer in charge of the jail had been suspended”
In his report of his investigation into Abu Ghraib, Major General George Fay said that the policy approved by the Secretary of Defense on December 2, 2002 contributed to the use of aggressive interrogation techniques at Abu Ghraib in late 2003.
Senate Conclusion 19: The abuse of detainees at Abu Ghraib in late 2003 was not simply the result of a few soldiers acting on their own. Interrogation techniques such as stripping detainees of their clothes, placing them in stress positions, and using military working dogs to intimidate them appeared in Iraq only after they had been approved for use in Afghanistan and at GTMO.
Secretary of Defense Donald Rumsfeld’s December 2, 2002 authorization of aggressive interrogation techniques and subsequent interrogation policies and plans approved by senior military and civilian officials conveyed the message that physical pressures and degradation were appropriate treatment for detainees in U.S. military custody. What followed was an erosion in standards dictating that detainees be treated humanely.
IS THIS HOW IT WILL ALL END? NO PROSECUTIONS?
There are hundreds involved in this travesty.
Here's how I suspect it will end:
The International Community will gather to determine a new law/rule for non-state terrorist groups. Torture will still be against the law; however, they will let the BushCo players (and if you read the documents there are hundreds) off the hook, including many soldiers, due to the "extraordinary circumstances" of 9/11.
They will call BushCo's response something like 'temporary insanity'.
That way the expense and drama of prosecutions will be avoided and the laws will be cleared up.
I'm not saying I like this potential conclusion, but it is the only one I can forsee that will prevent hundreds of Americans from being prosecuted under the existing laws. Otherwise, where do we draw the line of prosecution? Lindsey England already served her time, and now we know she was not just "one of a few bad apples". We now know it was Rotten at the top as well, long before Ms. England came along.
Will BushCo be let off the hook because of extraordinary circumstances? If so, won't others be able to claim the same UNLESS new, strict, clear laws/consequences are reinstated for any/all ever, under any/all circumstances will be treated humanely regardless of how heinous their crime(s) may be?
Of course, this conclusion could only be offered with America's promise to prosecute anyone who, for any reason, tortures anyone ever and also promises to hand them over to the Hague.
Just a thought.