The Imperial Presidency by David C. Hall
The Imperial Presidency
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Overthe years since the attack on the Twin Towers in September, 2001, the power ofthe American Presidency, coupled with the hysteria of the “Global War onTerror”, made it possible for a policy of expediency, based on the idea thatthe Geneva Conventions were “obsolete”, to permeate and corrupt all branches ofthe US government, armed forces and both political parties and, as the Councilof Europe report shows, to enlist European governments as accomplices. Asnovelist Norman Mailer said in an interview not long before his death lastyear, in the Western world we tend to have the rather compacent belief thatdemocracy is something natural, while in fact it is more likely that what is“natural” is some form of fascism. Democracy, Mailer said, is by its naturefragile.
In an articlein the Washington Post * published in January, 2007, in which she refers tovarious human rights abuses perpetrated by the Bush administration, DahliaLithwick wrote:
I once believed that the common thread here ispresidential blindness -- an extreme executive-branch myopia that leads thechief executive to believe that these futile measures are integral to combatingterrorism... But it has finally become clearthat the goal of these efforts isn't to win the war against terrorism; indeed,nothing about Padilla, Guantanamo Bay or signing statements moves the countryan inch closer to eradicating terrorism. The object is a larger one: expandingexecutive power, for its own sake.
The article was entitled, “ImperialPresidency”. The term “Imperial” refers not so much to the time-honored idea ofAmerican Imperialism as to that of the usurpation of unlimited power. Rome wasa Republic before it was Empire, and the rule of the emperors rested upon theinstitutions of the Republic, which had simply been stripped of their power.Roman legions marched under the standard of “The Senate and the Roman People”for centuries after the Senate had become nothing but a rubber stamp for theemperor’s will.
GeorgeBush came to power with a team made up of a number of people, including thevice-president, Dick Cheney, who were convinced that the powers of the officeof the presidency of the United States had been disastrously weakened by theeffects of the Vietnam War and Watergate. The events of September 11, 2001,gave them the opportunity to restore those powers, and they lost no time indoing so.
TheBush doctrine of presidential power is known as the “New Paradigm”. As JaneMayer defined it in The New Yorker in June, 2006:
… this strategyrests on a reading of the Constitution that few legal scholars share—namely,that the President, as Commander-in-Chief, has the authority to disregardvirtually all previously known legal boundaries, if national security demandsit. Under this framework, statutes prohibiting torture, secret detention, andwarrantless surveillance have been set aside.
Nor have other branches of government done much todefend their ground. As Elaine Casselwrote in her book, The War on CivilLiberties:
Whenfederal judge after federal judge handed the administration victory aftervictory and authorized detentions without charge, charges without trials,trials without attorneys and trials with secret evidence, the concept of thejudicial oversight of the executive branch ended. For all intents and purposes,our constitutional system of three independent branches of government hasended. There is only one branch of government – an all-powerful president. (p.162)
“…we are going to attempt to dominate the information environment”
The US military and Americanpolitics in general learned the importance of the image in Vietnam. Thephotograph of a Vietnamese girl running naked and screaming down the middle ofa road against the background of devastating clouds of napalm or the shot of aSouth Vietnamese officer executing a Viet Cong by putting a revolver to theside of his head made the abstraction of a distant conflict suddenly real.These were images that stuck in the mind and tugged at the conscience.
As of the first Gulf War and oninto the invasion of Afghanistan and then Iraq, the American military was toensure that there would be no more images like that. Much less the rows ofcoffins draped with American flags.
In this effort the Bushadministration and the military received the practically full cooperation ofAmerican media, the same media which had, with very few exceptions, lent theirsupport to the administration’s efforts to sell the invasion of Iraq to theAmerican public by giving credibility to the two arguments for justifying theinvasion - the connection between the Saddam Hussein regime and al Qaeda andIraq’s possession of weapons of mass destruction – both of which have sincebeen proved to be totally incredible* (Bill Moyers).
Thus we have the figure of theembedded journalist, "Those correspondents who drive around in tanks and armored personnelcarriers," veteran journalist Gay Talese called them in an interview,"spoon-fed what the military gives them…”
Aspokesman for the military, Marine Lt. Col. Rick Long explained the idea of theimbedded journalist very clearly. “Frankly, our job is to win the war. Part ofthat is information warfare. So we are going to attempt to dominate theinformation environment…” (Jeffery Kahn, UC Berkeley News, 18 March, 2004)
In aninterview on the Pacifica TV program Democracy Now, host Amy Goodman asked Aaron Brown, CNN anchorman during theinvasion of Iraq, why there were no pictures of casualties in the US media.“It’s tough to get those shots,” Brown said. Amy Goodman pointed out that CNNhad had no trouble using Al Jazeera’s footage of the fireworks display of thebombs over Bagdad, so why couldn’t they use their shots of casualties. “They’retasteless,” Aaron Brown said.
Onanother occasion, Amy Goodman commented:
I really do think that if for oneweek in the United States we saw the true face of war, we saw people's limbssheered off, we saw the kids blown apart, for one week war would be eradicated.Instead what we see in the U.S. media and it's just quite astounding, it's thevideo war game.
“… our job is to win thewar. Part of that is information warfare.”
We needto keep that in mind when we consider how the Palestine Hotel, and thus JoséCouso, became a military objective.
At a conference that is a tribute to José Couso, whowas a photographer, it is fitting to recall that it was photographs that showedthe world the real face of the American adventure in Iraq. The pictures fromAbu Ghraib.
Pictures from Abu Ghraib
Thefirst thing that strikes one about the photos from Abu Ghraib is theirobscenity. In most prisoners are naked, handcuffed, with black hoods on theirheads. In some they have been forcibly piled, naked, one on top of the other.In one picture Pfc. Lynndie England, cigarette in her mouth, grins at thecamera as she points at the genitals of naked Iraqis, in another a prisoner,handcuffed to the bars of a cell, has his face covered not with the usual blackhood but with a pair of woman’s panties. What is obscene here is the utter contemptfor human dignity, along with the distinct impression that the Americansoldiers who appear in the photos are evidently having fun. As it turns out,they were the ones who took the pictures.
Sometime in November, 2003, military policeman Specialist Joseph M. Darby obtainedtwo CDs containing hundreds of photos showing US military police abusingprisoners in the Abu Ghraib prison. He was given the CDs by Military PolicemanCharles A. Graner Jr., who appears in some of the photos. Graner does not seemto have been ashamed of what was to be seen in those photos, nor does it seemto have occurred to him that he might be prosecuted for it. He was eventually sentenced to ten years in amilitary prison.
Darbyhanded the CDs over to the Army’s Criminal Investigation Command in January,2004. Their investigations eventually led to the criminal prosecution of sevenMPs assigned as guards in the Abu Ghraib prison. The photographs were leaked,supposedly by a relative of one of the accused military policemen, to CBStelevision’s program Sixty Minutes inmid-April, 2004.
InJanuary 2004 Major General Antonio Tabuga was appointed to investigate the 800thMilitary Police Brigade, in charge of the prison. After extensiveinvestigations, including interviews with Iraqi prisoners, prison guards andother personnel involved, Taguba delivered his report to his superiors in earlyMarch. He concluded that “between October and December, 2003… numerousincidents of sadistic, blatant and wanton criminal abuses were inflicted onseveral detainees. This systemic and illegal abuse of detainees wasintentionally perpetrated by several members of the military police…” (TagubaReport)
As “SPECIFICFINDINGS OF FACT” Taguba states:
(S) I find that the intentional abuse of detainees bymilitary police personnel included
the following acts:
a. (S) Punching, slapping, and kicking detainees;jumping on their naked feet;
b. (S) Videotaping and photographing naked male andfemale detainees;
c. (S) Forcibly arranging detainees in varioussexually explicit positions for
photographing;
d. (S) Forcing detainees to remove their clothing andkeeping them naked for several
days at a time;
e. (S) Forcing naked male detainees to wear women’sunderwear;
f. (S) Forcing groups of male detainees to masturbatethemselves while being
photographed and videotaped;
g. (S) Arranging naked male detainees in a pile andthen jumping on them;
h. (S) Positioning a naked detainee on a MRE Box, witha sandbag on his head, and
attaching wires to his fingers, toes, and penis tosimulate electric torture;
i. (S) Writing “I am a Rapest” (sic) on the leg of adetainee alleged to have forcibly
raped a 15-year old fellow detainee, and thenphotographing him naked;
j. (S) Placing a dog chain or strap around a naked detainee’sneck and having a
female Soldier pose for a picture;
k. (S) A male MP guard having sex with a femaledetainee;
l. (S) Using military working dogs (without muzzles)to intimidate and frighten
detainees, and in at least one case biting andseverely injuring a detainee;
m. (S) Taking photographs of dead Iraqi detainees.
Healso found certain other acts of abuse described by detainees as credible,including:
- (U) Breaking chemical lights and pouring thephosphoric liquid on detainees;
- (U) Pouring cold water on naked detainees;
- (U) Threatening male detainees with rape;
- (U) Sodomizing a detainee with a chemical light andperhaps a broom stick.
Taguba’sreport also indicated that Military Intelligence interrogators andinterrogators from Other US Government Agencies – in other words CIA -“actively requested that MP guards set physical and mental conditions forfavorable interrogation of witnesses.” MPswould be told to “Loosen this guy up for us.” “Make sure he has a bad night.”
ThoughTaguba’s investigation was restricted to the 800th Military PoliceBrigade he recommended reprimands and other disciplinary action for variousMilitary Intelligence officers and for two civilian contractors working for thecompany CACI International[1].
Taguba’swork was not well received by his superiors or his colleagues. “They’re justIraqis,” he was told. When he met Secretary of Defense Donald Rumsfield in Mayof 2004, when the photos from Abu Ghraib were on newsstands all over the worldand the Tabuga report had been leaked – not by Taguba himself – and reported onby Seymour Hersh in The New Yorker,Rumsfield was chiefly concerned about how the report had been leaked. The following day, appearing before the Senate andHouse Armed Services Committees, the Secretary of Defense stated, under oath,that when the stories came out in the news the Taguba report had not yetreached the Pentagon and that he had not seen the photographs “until last nightat 7:30”.
Taguba knew that Rumsfield’s chief military assistanthad begun receiving a series of e-mails from the Criminal InvestigationDivision thoroughly describing the photos days after their investigationstarted in January. He himself had submitted more than a dozen draft copies ofhis report through channels at the Pentagon and had spent weeks briefing seniormilitary leaders on the report. Rumsfield and the senior military officials whoaccompanied him, were lying.
Earlier on, shortly after the report became public,General John Abizaid, head of Central Command in Iraq, told Taguba in private;“You and your report will be investigated.”
“I’d been in the Army thirty-two years by then,” Tagubasaid later, “and it was the first time that I thought I was in the Mafia.”
Officials of the International Committee of the RedCross (ICRC) visited Abu Ghraib in October, 2003, in other words, at the timewhen the abuses described in the Taguba report were taking place. What the RedCross observed there, along with their observations on treatment of prisonersof war and other detainees throughout Iraq appeared in a report dated February,2004. The report, as is usual with Red Cross reports, was not intended to bemade public. “The ICRC reminds the High Contracting Parties concerned, usuallyin a confidential way, of their humanitarian obligations under all the GenevaConventions…” This report, however, was leaked to The Wall Street Journal in May, 2004.
It describes how arrests were being carried on byoccupation forces in Iraq:
Arrestingauthorities entered houses usually after dark, breaking down doors, waking upresidents, roughly yelling orders, forcing family members into one room undermilitary guard while searching the rest of the house and further breaking downdoors, cabinets and other property. They arrested suspects, tying their handsin the back with flexi-cuffs, hooding them and taking them away. Sometimes theyarrested all adult males present in the house, including elderly, handicappedor sick people… pushing people around, insulting, taking aim with rifles, punchingand kicking and striking with rifles.
…they rarely informed the arrestee or his family wherehe was being taken and for how long, resulting in the de facto “disappearance”of the arrestee for weeks or even months…
This description, typical of the repressive tactics ofan occupying army, the French in Algeria and Americans in Vietnam is followedby this chilling observation:
CertainCF (Coalition Forces) military intelligence officers told the ICRC that intheir estimate between 70% and 90% of the persons deprived of their liberty inIraq had been arrested by mistake.
The ICRC report consistentlycoincides with the Taguba report as to the types of abuse inflicted at AbuGhraib, citing beatings, hooding, enforced nakedness, prolonged handcuffing andprisoners being forced to wear women’s underwear. Though the report was datedFebruary, 2004, an earlier version had been submitted to United States Armycommand in Iraq as early as November, 2003. In May, 2004, three of the US armedforces highest ranking officers blandly told the Senate Armed ServicesCommittee that nothing had been done about the reports because they “becamelost in the Army’s bureaucracy”.
An unnamed senior officer told The New York Times during that samemonth of May that far from being lost in the bureaucracy, the Army had beensufficiently aware of the report’s contents to respond by trying to curtail RedCross “spot inspections of the prison,” and by contending in a letter ofDecember 24, signed by Brig. General Janis Karpinski, commanding officer at AbuGhraib, that the isolation of some prisoners from Red Cross representatives wasa “military necessity.” (Torture andTruth, p.216)
The Torture Memos
OnJune 22, 2004, in the aftermath of the Abu Ghraib scandal, the White Housereleased to the public 14 previously classified documents, some of which hadalready been leaked to the press or were known to exist, originating from theWhite House, the Pentagon and the Justice Department concerning theAdministration’s policies on interrogation. Other, similar documents were to bereleased later, some are still classified.
JoshuaDratel[2]wrote in his introduction to The TorturePapers:
The policies that resulted in the rampant abuse of detainees first inAfghanistan, then at Guantanamo Bay and later in Iraq, were the product ofthree pernicious purposes designed to facilitate the unilateral and unfettereddetention, interrogation, abuse, judgment and punishment of prisoners: (1) thedesire to place the detainees beyond the reach of any court of law; (2) thedesire to abrogate the Geneva Convention with respect to the treatment ofpersons seized in the context of armed hostilities; and (3) the desire toabsolve those implementing the policies of any liability under U.S. andinternational law.
A number of the documentsare opinions written by the Office of Legal Counsel of the Justice Department.This office acts as the President’s lawyer, interpreting all laws that have todo with the powers of the executive branch. The office can, of course, say noto the President when it considers that a presidential initiative might violatethe law. When it says yes, according to Jack Goldsmith, who headed the officefor nine months in 2003-2004, its opinions are the equivalent of “anadvance pardon” for actions taken at the fuzzy edges of criminal laws. (NYT9-9-2007). For example, when the Director of the CIA admitted for the firsttime in February of this year that waterboarding had been used by the Agency in2002 and 2003 in interrogating al Qaeda suspects, Attorney General MichaelMukasey refused to accept demands for a criminal investigation of interrogators who usedwaterboarding or of their superiors, on the grounds that C.I.A. officers couldnot be prosecuted for actions the Justice Department had advised them werelegal.
Before he took over,Goldsmith says, legal-policy decisions in the war on terror were notactually made by the Office of Legal Counsel but by a self-styled “war council”consisting of White House Counsel (later Attorney General, Alberto J. Gonzales,Vice-President Cheney’s chief counsel David Addington, William Haynes, generalcounsel of the Department of Defense and John Yoo, the only one who actuallyworked for the Justice Department’s Office of Legal Counsel.
OLC memos deal with three,interrelated questions:
- Whether or not GenevaConventions apply to captured al Qaeda and Taliban combatants.
- The legal definition oftorture.
- The scope of thepresident’s power as Commander-in-Chief of the US armed forces in time of war.
The President’slegal advisers decided very early on that Geneva did not apply to al Qaeda orTaliban detainees. On January 25, 2002, a little more than a week before thefirst prisoners arrived at Guantanamo - on a flight, as we know now,originating from Moron de la Frontera, Spain - White House Counsel AlbertoGonzales wrote in a memorandum to the President: “As you have said, the waragainst terrorism is a new kind of war… In my judgment this new paradigmrenders obsolete Geneva’s strict limitations on questioning of enemyprisoners…”
TheWhite House officially adopted this position on February 27, 2002, in amemorandum titled, presumably without ironic intent, “Humane Treatment of alQaeda and Taliban Detainees”.
Roughly, according to thePresident’s lawyers, Genevadid not apply at all to al-Qaeda fighters, because they were not part of astate and therefore could not claim rights under a treaty that was binding onlyon states. Geneva did apply tothe Taliban, but Taliban fighters were not POWs, because they had not wornuniforms or insignia, and they could not be covered by Common Article 3because, according to Justice Department lawyers, it only applied to “armedconflict not of an international character,” which the administrationinterpreted to mean civil war. “In reaching this conclusion,” Phillippe Sandswrites in Vanity Fair, “the Bush administration simply abandoned alllegal and customary precedent that regards Common Article 3 as a minimal billof rights for everyone.”
Thedefinition of torture as set forth in a memo dated August 1, 2002, written byJay Bybee and John Woo, with guidance from Addington, entitled “Standards of Conductfor Interrogation Under 18 U.S.C §§ 2340-2340-A” and usually called the Torture Memo, is nowwell known:
… physical pain amounting to torture must be equivalent inintensity to the pain accompanying serious physical injury, such as organfailure, impairment of bodily function, or even death. For purely mental painand suffering to amount to torture under Section 2430 it must result insignificant psychological harm of significant duration, e.g. lasting for monthsor even years.
This opinion refers, as itexplicitly states, to “the conduct of interrogation outside the United States”.Section 2430 and 2430A of the U.S. Code implement the Convention AgainstTorture and Other Cruel, Inhuman and Degrading Treatment or Punishment. Theopinion also argues that “because Section 2340 requires that a defendant actwith the specific intent to inflict severe pain, the infliction of such painmust be the defendant’s precise objective.”
Harold Koh, a professor of international law and the Dean of Yale LawSchool, told the Senate Judiciary Committee that this was the most erroneouslegal opinion he had ever read. Anthony Lewis likened the analysis to "theadvice of a mob lawyer to a mafia don on how to skirt the law and stay out ofprison." (Georgetown)
An 81-page,2003 memo signed by John Yoo and declassified early this month, reiteratesthese positions but goes into graphic detail, considering cases of maiming,throwing "scalding water, corrosive acid or caustic substance" on aprisoner or the administering of mind-altering drugs. Any of these must,according to the memo, include specific intent on the part of the defendant,e.g. “intent to maim”, can be defended by the nation’s right to self-defenseand are ultimately subject to the president's ultimate authority as commander in chief. (Washington Post,6 April, 2008). In addition the memo states that, “Our Officehas made clear its agreement with these Supreme Court cases that the Presidentcan unilaterally order the violation of customary international law.”
The memo of August 1, 2002, also has much to say about the scope of thePresident’s authority as commander-in-chief:
We find that in thecircumstances of the current war against al Qaeda and its allies, prosecutionunder Section 2340A may be barred because enforcement of the Statute wouldrepresent an unconstitutional infringement of the President’s authority toconduct war.
Even if an interrogation method arguably were to violateSection 2340A, the statute would be unconstitutional if it impermissiblyencroached on the President’s constitutional power to conduct a militarycampaign.
…bothcourts and prosecutors should reject prosecutions that apply federal criminallaws to activity that is authorized pursuant to one of the President’sconstitutional powers.
And
Congress can no more interfere with the President’s conduct of theinterrogation of enemy combatants than it can dictate strategic or tacticaldecisions on the battlefield.
Theseopinions are consistent with ideas that had begun to be developed monthsbefore. In a memo dated January 9, 2002, Yoo baldly stated that “customaryinternational law, whatever its source and content, does not bind thePresident, or restrict the actions of the United States military…”
Inother words, in time of war, the power of the President in carrying out thatwar is unlimited and unchallengeable. He, and by extension those who carry outhis orders, are above the law.
Andsince on Sept. 20, 2001, Bush had announced that “Our war on terror begins withal Qaeda, but it does not end there. It will not end until every terroristgroup of global reach has been found, stopped and defeated,” (George W. Bush, Address to JointSession of Congress, Sept. 20, 2001), the Global War on Terror, as Bush and his people continue to call it,may well go on indefinitely, as would, of course, the President’s unlimited warpowers,
These considerations were to be putinto effect in conjunction with the “Military Order of November 13, 2001,entitled “Detention, Treatment and Trial of Certain Non-Citizens in the WarAgainst Terrorism” This order, issued directly by the White House, providesthat “it is necessary for individuals subject to this order… to be detained,and, when tried, to be tried… by military tribunals…”
“Individuals subject to this order” meansany person who is not a United States citizen that “I (i.e. the President)determine… that:
(I) there is reason to believe…
(i) is or was amember of the organization known as al Qaida;
(ii) has engaged in, aided or abetted, orconspired to commit, acts of international terrorism, or acts in preparationtherefore…
(iii) has knowingly harbored one or moreindividuals described in paragraphs (i) and (ii)…”
Theorder also considers that “it is not practicable to apply in militarycommission under this order the principles of law and the rules of evidencegenerally recognized in the trial of criminal cases in the United Statesdistrict courts.”
And
…the individual shall not be privileged to seek any remedy ormaintain any proceeding, directly or indirectly, or to have any remedy orproceeding sought on the individual’s behalf, in (i) any court of the UnitedStates, or any State thereof, (ii) any court of any foreign nation, or (iii)any international tribunal.
Thisis what Michael Ratner, president of the Center for Constitutional Rights,calls “the coup d’etat order”. Because, Ratner says, “it basically said the president could pick up anynoncitizen -- at that point; it's now been extended to citizens -- anywhere inthe world and hold them forever, and not allow them to go into a court to getwhat we call a writ of habeas corpus.” (AlterNet, 3 December, 2007)
The intent to floutinternational law could hardly be clearer. This policy led directly to what hasbeen described with admirably clarity in the report by the Council of Europe’sCommittee on Legal Affairs and Human Rights headed by Rapporteur Dick Marty,entitled “Secret detentions and illegal transfers of detainees involving Council ofEurope member states” (June 22, 2007):
… large numbers ofpeople have been abducted from various locations across the world andtransferred to countries where they have been persecuted and where it is knownthat torture is common practice. Others have been held in arbitrary detention,without any precise charges levelled against them and without any judicialoversight – denied the possibility of defending themselves. Still others havesimply disappeared for indefinite periods and have been held in secret prisons,including in member states of the Council of Europe…
Some individuals were kept in secret detention centresfor periods of several years, where they were subjected to degrading treatmentand so-called “enhanced interrogation techniques” (essentially a euphemism fora kind of torture)… others have been transferred thousands of miles intoprisons whose locations they may never know, interrogated ceaselessly,physically and psychologically abused, before being released because they wereplainly not the people being sought.
The tone of quiet outrage thatruns through the Committee’s report is in part because these illegal acts tookplace, in most cases, with the “requisite permissions, protection and activeassistance of government agencies” of the United States’ many partnercountries, including members of the Council of Europe.
Further,
The rendition, abduction and detention of terroristsuspects have always taken place outside the territory of the United States,where such actions would no doubt have been ruled unlawful andunconstitutional. Obviously, these actions are also unacceptable under the lawsof European countries, who nonetheless tolerated them or colluded actively incarrying them out. This export of illegal activities overseas is all the moreshocking in that it shows fundamental contempt for the countries on whoseterritories it was decided to commit the relevant acts. The fact that themeasures only apply to non-American citizens is just as disturbing: it reflectsa kind of “legal apartheid” and an exaggerated sense of superiority.
The secret detention facilities in Europe were rundirectly and exclusively by the CIA… While it is likely that very few people inthe countries concerned, including in the governments themselves, knew of theexistence of the centres, we have sufficient grounds to declare that thehighest state authorities were aware of the CIA’s illegal activities on theirterritories.
TheCommittee report also explains, in part, how this cooperation came about:
“We believe thatthe framework for such assistance was developed around NATO authorisationsagreed on 4 October 2001, some of which are public and some of which remainsecret. According to several concurring sources, these authorisations served asa platform for bilateral agreements, which – of course – also remain secret.
The blame, the report observes,“does not lie solely with the Americans but also… with European politicalleaders who have knowingly acquiesced in this state of affairs.”
I am not aware, at this moment,of any legal action of any sort underway, in any country, against any of theseEuropean political leaders.
“… the Constitution crumbles”
The“New Paradigm” was not without opposition. Colin Powell, as Secretary of State,argued the Justice Department’s view that Geneva did not apply to al Qaeda andTaliban combatants and warned that this policy “will reverse over a century ofU.S. policy in supporting the Geneva conventions and undermine the protectionsof the law of war for our troops…” (Powell memo) Powell lost the battle andperhaps could have maintained his reputation as the only decent person in theBush cabinet if he had resigned then, instead of going on to lie to the UnitedNations about Iraq’s weapons of mass destruction.
A far more tenacious responsecame from further down the line. In December, 2002, Alberto G. Mora, GeneralCounsel of the Navy, was informed by Director of the Naval CriminalInvestigation Service (NCIS) David Brant that “detainees confined in Guantanamowere being subjected to physical abuse and degrading treatment.” (Mora memo).“Brant emphasized that NCIS would not engage in abusive treatment even ifordered to and did not wish to be even indirectly associated with a facilitythat engaged in such practices.” He added that “NCIS had been informed that thecoercive interrogation techniques did not represent simply rogue activitylimited to undisciplined interrogators or even practices sanctioned only by thelocal command, but had been reportedly authorized at a ‘high level’ inWashington.”
Mora spoke to his counterpartwith the army, Steven Morello, who gave him a “package” of secret documentsincluding a memo signed by Secretary of Defense Donald Rumsfield approving 15out of a list of 18 proposed interrogation procedures, none of them permissibleunder the Army Field Manual, including hooding, “deprivation of light and auditory stimuli”, “stresspositions”, “use of 20-hour interrogations”, “removal of clothing” and “usingdetainees’ individual phobias (such as fear of dogs)”. Rumsfield reservedjudgment on other methods, called Category III techniques, includingwaterboarding, described here as “use of a wet towel and dripping water toinduce the misperception of suffocating”.
The list also included“use of stress positions (like standing) for a maximum of four hours”, andRumsfield had scribbled in, “However, I stand for 8-10 hours a day. Why isstanding limited to 4 hours?” Mora was quick to observe that this repulsiveattempt at humor could easily be taken to mean the interrogator could feel freeto stretch the rules.
The list of proposedtechniques was accompanied by a legal brief defending their use, which Mora consideredan “incompetent legal analysis”. (footnote on Beaver)
Mora asked for a meetingwith his boss, the General Counsel of the Department of Defense, WilliamHaynes. “I urged him to think about the techniques moreclosely,” Mora wrote in his memoof July 7, 2004, “Statement for the Record”:
What did "deprivation of light and auditorystimuli" mean? Could a detainee be locked in a completely dark cell? Andfor how long? A month? Longer? What precisely did the authority to exploitphobias permit? Could a detainee be held in a coffin? Could phobias be applieduntil madness set in? Not only could individual techniques applied singlyconstitute torture, I said, but also the application of combinations of themmust surely be recognized as potentially capable of reaching the level oftorture.
Mora wrote that he had enteredthe meeting believing that Rumsfield’s memo was “almost certainly notreflective of conscious policy but the product of oversight…” Returning fromhis Christmas vacation in January he was informed that the abuse at Guantanamowas still going on.
Mora put more pressure on, andRumsfield in fact rescinded his memo that January, ordering the creation of aworking group on interrogation policy. “The Working Group Report on DetaineeInterrogation in the Global War on Terrorism” which came out in its finalversion in April, 2003, is a Byzantine, 80 page document that relied heavily onYoo’s Torture Memo,incorporating much of the language verbatim. (Georgetown) Mora’s views had been systematically rejected.He did not even find out it had been approved until a year later.
While still involved, on February6, 2003, Mora met with John Yoo, the principal author of the memos. Could thePresident order the use of torture? Mora asked. Mr. Yoo said, ‘Yes.’"
Mora, speaking later, said that he thinks the mediafocus on torture as such is in fact too narrow, since the authorization ofcruelty is just as bad.
To my mind there’s no moral or practical distinction.If cruelty is no longer declared unlawful, but instead is applied as a matterof policy, it alters the fundamental relationship of man to government. Itdestroys the whole notion of individual rights. The Constitution recognizesthat man has an inherent right, not bestowed by the state or laws, to personaldignity, including the right to be free of cruelty. It applies to all humanbeings, not just in America – even those designated as “unlawful enemycombatants.” If you make this exception, the whole Constitution crumbles.
In the aftermath of Abu Ghraib,Yoo’s torture memos were “withdrawn” by the new head of OLC Jack Goldsmith, whoresigned immediately afterward. Goldsmith had clashed repeatedly with Cheney’scounsel David Addington, who once told him, “If you rule that way, the blood ofthe hundred thousand people who die in the next attack will be on your hands.”
That same year, 2004, SupremeCourt ruled against Presidential order of November 13, 2001, in Rasul v. Bush, and determined thatdetainees at Guantanamo had the right to bring habeas-corpus petitions infederal court. And by the end of the year the Justice Department had publiclydeclared torture “abhorrent”. But as the New York Times revealed in October,2007, shortly after Bush began his second term in 2005, with Goldsmith gone andAlberto Gonzales as Attorney General, the Justice Department issued anothersecret opinion. This document, which is still classified, was, in the words ofthe Times, “an expansive endorsement of the harshest interrogation techniquesever used by the Central Intelligence Agency”. (NYT) Bush and his people werenot about to quit. The Global War on Terror would go on as usual.
In 2006 the U.S. Supreme Court ruled in Hamdan v. Rumsfeld,that Guantánamo detainees were entitled to the protections provided under Geneva’sCommon Article 3. and, speaking for the majority, Justice Anthony Kennedyobserved that “violations of Common Article 3 are considered ‘war crimes.’” ThePresident’s lawyers got to work, and four months later Bush signed the MilitaryCommissions Act, which created a legal defense against lawsuits for misconductarising from the “detention and interrogation of aliens” between September 11,2001, and December 30, 2005. On signing the bill Bush said that it provided“legal protections that ensure our military and intelligence personnel will nothave to fear lawsuits filed by terrorists simply for doing their jobs.” (VanityFair, Sands)
Bush’s claim that the abuses atAbu Ghraib were the work of “a few bad apples” is not so much implausible asjust silly, unless one has an extraordinary belief in coincidence. Incidentsinvolving forced nakedness, detainees wearing women’s underwear and the use ofdogs, for example, are all documented as having occurred not just at Abu Ghraibbut also at Guantanamo, the Bagram military base in Afghanistan and at othersites. Writing in The New Yorker SeymourHersh (who broke the story on the My Lai atrocities in Vietnam) traced this useof sexual humiliation in the “war on terror” to a book called “The Arab Mind”by Raphael Patai, reputed to have been a kind of bible on Arab behavior forneocons in the months before the invasion of Iraq. According to Patai thebiggest weakness of Arabs is sexual shame and humiliation. Hersh was told by aPentagon consultant that the initial idea behind the posed photographs may havebeen to use them to blackmail prisoners into becoming informants to be insertedback into the population. (The Gray Zone)
“These MP troops were not that creative,” GeneralTaguba told Hersh (The General’s Report), “somebody was giving themguidelines.”
Taguba, however, had beenassigned to investigate military police and was “legally prevented from furtherinvestigation into higher authority.” Other investigations followed his, endingup with the Final Report of the Independent Panel to Review Department ofDefense Detention Operations dated August 2004 and chaired by JamesSchlesinger, who had been Secretary of Defense under Nixon. The SchlesingerReport is a highly sophisticated example of damage control that criticizes theDefense Department for sending out “confusing” messages, military commandersfor lack of leadership, the CIA, the Justice Department… The Schlesinger Reportfinds much to criticize, but no one is really guilty of anything except, as a former intelligence officer toldSeymour Hersh, some kids out of control.
According to the Schlesingerreport what happened was that interrogation techniques that were used, subjectto strict guidelines and control, at Guantanamo, where Geneva did not apply,“migrated” to Iraq, where Geneva did apply, and personnel were not properlysupervised.
As far as Guantanamo goes, thisis disingenuous, to say the least. Not just because, as the Supreme Courtfinally confirmed, Geneva did apply.As Lieutenant General Randall Schmidt, assigned to investigate abuse atGuantanamo, put it “For lack of a camera, you could have seen at Guantanamowhat was seen at Abu Ghraib.” (New Yorker, The General’s Report)
The idea of “migration” too isconvenient, implying a natural, not necessarily intentional action, somethingthat just sort of happens. Birds migrate, the interrogation techniques weresent. As Phillippe Sands writes in Vanity Fair, “The origins lie in actions taken at the very highestlevels of the administration—by some of the most senior personal advisers tothe president, the vice president, and the secretary of defense.”
This becomes, I think,eminently clear if we consider a series of events as a whole, in roughlychronological order:
> InOctober, 2001, when John Walker Lindh, “the American Taliban” was captured inAfghanistan, Department of Defense counsel William Haynes told the admiral incharge of detainees to “take the gloves off’” . Wounded in the leg, Lindh wasstripped naked, blindfolded, gagged and duct-taped to a gurney and left in adark, sealed, unheated shipping container. Still strappred to the gurney Lindhwas exhibited to the press and to any soldier who wished to see him, some ofwhom had their pictures taken standing next to him, and interrogated in marathonsessions for hours. Lindh eventually signed a confession, but when his lawyersucceeded in challenging it on the grounds that it was obtained under torture,the Justice Department agreed to accept a guilty plea to lesser charges inexchange for Lindh’s signed agreement that he would keep silent about his treatment in custody.
According to documentsleaked to a Los Angeles Times reporter, Lindh’s responses during theinterrogation sessions were cabled back to the Defense Department as often asevery hour. In the coming years, as the United States built its network ofsecret and semi-secret prisons, Mark Danner wrote in the New York Review ofBooks (The Secret Road to Abu Ghraib, Oct. 7, 2004), “this direct attentionfrom senior officials in Washington has remained constant.” Lt. Col. StevenJordan, head of the Joint Intelligence and Debriefing Center at Abu Ghraib,told General Taguba “Sir, I was told a couple of times… that some of thereporting was getting read by Rumsfield, folks out of Langley (CIA headquarters),some very senior folks.” (quoted in ibid)
> A few months afterLindh’s interrogation, January, 2002, the Justice Department produced its firstmemo arguing that Geneva did not cover al Qaeda and Taliban prisoners.
> When Major GeneralMichael Dunlavey, appointed to run Guantanamo, arrived there in Marchplaneloads of detainees were being delivered on a daily basis, and Dunlaveysoon concluded that half of them had no intelligence value. He reported this toRumsfeld, who referred the matter to the Undersecretary of Defense for policy,Douglas Feith. Feith resisted the idea of repatriating any detaineeswhatsoever. (Sands)
> In September, 2002,a series of brainstorming meetings were held at Guantanamo to develop new, moreaggressive “counter-resistance” interrogation techniques. There was terrificpressure from Washington, “from the top” to produce information. Washington wasparticularly interested in Mohammed al-Qahtani, the so-called 20thhijacker, believed to have been directly involved in the 9/11 attacks, who wasnot responding to conventional methods of interrogation. Diane Beaver, StaffJudge Advocate at Guantanamo, told Phillippe Sands that “Washington’s viewswere being fed into the process” by people from the Defense Intelligence Agency(D.I.A.) and CIA psychologists. Some of the ideas were derived from a military programknown as sere (Survival, Evasion, Resistance, andEscape), designed to teach soldiers how to persevere in the event of capture.Guantánamo personnel, including a psychologist and a psychiatrist, had traveledto Fort Bragg, sere’s home, for a briefing.
> On September 25,2002, a few weeks after the August 1, Yoo-Bebee Torture Memo was issued, adelegation of the administration’s most senior lawyers arrived at Guantánamo.The group included Alberto Gonzales, who had by then received the Torture Memo;Cheney’s lawyer, David Addington, who had contributed to writing it; C.I.A.’sJohn Rizzo, who had asked for and received the second (and still secret) YooMemo; and Defense Department counsel William Haynes. “They brought ideas with them whichhad been given from sources in D.C.,” Dunlavey said. Rumsfeld was “directly and regularlyinvolved.” The delegation also witnessed some interrogations.
Two weeks after thisvisit the process of compiling the list of new techniques was completed and setout in a three-page memorandum signed by Lieutenant Colonel Jerald Phifer. Thelegal brief accompanying – and justifying – the list was signed by DianeBeaver. The Government was subsequently to claim that the interrogationtechniques had “trickled up” from Guantanamo and that it became involved in theGuantánamo interrogations only in November, after receiving a list oftechniques out of the blue. In fact the administration’s top lawyers had beeninvolved in the process from the beginning. They got what they wanted, distanceand deniability. Other people’s names were on the papers. (Sands)
> On November 4,Major General Geoffrey Miller took over as commander at Guantánamo. On November12 a detailed interrogation plan was approved for Mohammed al-Qahtani, based onthe new interrogation techniques. The plan was sent to Rumsfeld for hispersonal approval. (Sands)
Naval CriminalInvestigative Service psychologist Michael Gelles had access to Armyinterrogation logs. As reported in TheNew Yorker:
Qahtani had been subjected to a hundred and sixty days ofisolation in a pen perpetually flooded with artificial light. He wasinterrogated on forty-eight of fifty-four days, for eighteen to twenty hours ata stretch. He had been stripped naked; straddled by taunting female guards, inan exercise called “invasion of space by a female”; forced to wear women’sunderwear on his head, and to put on a bra; threatened by dogs; placed on aleash; and told that his mother was a whore. By December, Qahtani had beensubjected to a phony kidnapping, deprived of heat, given large quantities ofintravenous liquids without access to a toilet, and deprived of sleep for threedays. In late November, Qahtani’s heart rate had dropped so precipitately, tothirty-five beats a minute, that he required cardiac monitoring.” (The NewYorker, The Memo, Feb. 27, 2006)
By January,
Qahtani had been stripped and shaved and told to barklike 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 andthen recanting various terrorist plots, he had begged to be allowed to commitsuicide. (Time magazine, quoted in The New Yorker, The Memo, Feb.27, 2006)
Secretary of Defense Rumsfield was in frequent contactwith General Miller about Qahtani’s interrogation and had personally approvedthe most severe interrogation tactics. (The New Yorker, The General’s Report)
In 2004 Lt. General Schmidt, investigating abuses atGuantanamo, found that Miller “was responsible for the conduct ofinterrogations that I found to be abusive and degrading,” and formallyrecommended he be “held accountable” and admonished. His boss, GeneralCraddock, Rumsfield’s former military aide, rejected the recommendation andabsolved Miller of mistreatment of detainees.
> In late August,2003, Major General Miller, still in command of the Guantanamo task force, wassent to Abu Ghraib accompanied by a team of “personnel experienced in strategicinterrogation” to “discusss current theater ability to rapidly exploitinternees for available intelligence”. (“MG Miller’s Report”, annex to TagubaReport). Miller took with him to Iraq copies of the Working Group Report and ofthe 238-page Guantanamo Standard Operating Procedures Manual, which indicates,among other things, that the International Committee of the Red Cross should bedenied access to certain prisoners and advises the use of isolation andsensory deprivation techniques. A key recommendation made by Miller’s team wasthat military police should become a part of theinterrogation process, setting “conditions for the successful interrogation andexploitation of internees/detainees”. (Miller Report)
> The abuses at AbuGhraib described in the Taguba Report began scarcely on month after MajorGeneral Miller’s visit.
> According to theinvestigation conducted by MG George R. Fay, Lt. General Ricardo S.Sánchez, Army commander in Iraq, “reliedheavily on the series of SOPS which MG G. Miller provided to develop not onlythe structure, but also the interrogation policies for detainee operations.”(Fay report). Sánchez routinely visited Abu Ghraib in the fall of 2003, whenthe abuse was taking place. Taguba came to believe that “Sánchez knew exactlywhat was going on.” (The New Yorker, The General’s Report)
When the images of Abu Ghraibwere published, Seymour Hersh wrote in the New Yorker (The Gray Zone”), some inthe Pentagon and the White House “didn’t think the photos were that bad” sincethey put the focus on enlisted soldiers rather than on secret task-force operations. A short timeafter the invasion of Afghanistan Rumsfield had set up a “special-accessprogram” involving personnel from the CIA and the military, with the mission to“kill, capture and detain” terrorist suspects considered to be of high value.These “high value detainees” were the “ghost detainees” Taguba reported beingbrought to Abu Ghraib by “Other Government Agencies” (CIA). In this sense AbuGhraib was simply another part of a network of known, semi-secret and secretprisons (or black sites) that included Camp Cropper in Iraq; Guantanamo, Kabul,Bagram and Kandahar in Afghanistan; and sites inThailand, Qatar and on theisland of Diego García. After The Washington Post revealed the existence of CIAprisons in Poland and Romania in late 2005, a new detainee center was set up inMauritania. (the General’s Report) The Red Cross has consistently been deniedaccess to these sites, or to parts of them. At the same time other suspects,most of whom were eventually proved to be innocent, were “outsourced” tocountries such as Morocco, Jordan, Saudi Arabia, Egypt and Syria, to betortured by military and police personnel of those countries.
In the 2007 Report of the Councilof Europe ‘s committee… rapporteur Dick Marty states his conviction that whathe calls the “high value detainee” (HVD) program originated with a PresidentialFinding signed on 17 September, 2001, the Sunday after September 11th.He also says that he was told of “further classified documents”, thought tohave been signed in 2002, that actually use the term “black sites”. (numbers 58and 59 and footnote 16)
The ultimate link to thePresident is provided, curiously enough, by Stateof Denial, the third volume of Bob Woodward’s trilogy Bush at War, which is in general sympathetic to Bush and his war onIraq. On September 13, according to Woodward, two days after the attacks on theWorld Trade Center, Bush met with Prince Bandar, a personal friend of the Bushfamily and ambassador from Saudi Arabia. Saudi Arabia was believed by the CIAto use torture on suspected terrorists. Cheney, Condoleeza Rice and Bandar’saide were also present at the meeting. In the photo both Bush and Bandar holdcigars.
“If we get somebody and we can’t get them tocooperate,” Bush told Bandar, “we’ll hand them over to you.”
“It would be wrong to consider the prospect of legaljeopardy unlikely.”
The pictures from AbuGhraib do not depict incidents, they illustrate policy. An interrogation policyconceived shortly after September 11, 2001, and developed and refined in aseries of legal opinions written over the next two years. These opinions servedto justify lists of approved “enhanced interrogation techniques” and announced thatas the President had the legal right to order the violation of internationallaw anyone following his orders was not liable to prosecution. “Addington,Bybee, Gonzales, Haynes, and Yoo became,” as Phillippe Sands writes, “a tortureteam of lawyers, freeing the administration from the constraints of allinternational rules prohibiting abuse.”
And they seem to havedone a good job, because though almost all of their positions have eventuallybeen knocked down by the courts, they – and their masters – have, at this pointin time, to all appearances got away with it. In January, 2008, GeorgeMcGovern, who ran for president against Richard Nixon, wrote in The Washington Post that the case for impeaching Bush and Cheneyis far stronger than was the case against Nixon in 1972, but only a handful ofmembers of Congress has ever supported impeachment. With the Democrats in themajority since 2006, Congress has never held a serious hearing on the origins of the torture program. In cases filed against Rumsfeld and others for torture,the courts so far have either found that these people are immune from suit dueto their office or that the cases would expose “state secrets” and thus cannotbe litigated. (Alternet, Center for ConstitutionalRights) In the run-up to the current presidential elections there is much talkabout Iraq but nothing, as far as I have seen, about responsibilities for AbuGhraib.
Only last Friday, 11April, Bush told ABC News that his top national security advisers discussed andapproved specific “enhanced interrogation techniques”, including waterboarding,for suspected al Qaeda detainees. The National Security Council's PrincipalsCommittee consisted of Vice President Dick Cheney, National Security AdviserCondoleezza Rice, Defense Secretary Donald Rumsfeld and Secretary of StateColin Powell, as well as CIA Director George Tenet and Attorney General JohnAshcroft. Even after the Torture Memo, which CIA called the “Golden Shield, waswithdrawn by Jack Goldsmith, Condoleeza Rice, who chaired the meetings, wasdecisive in insisting the aggressive techniques continue to be used. Bush isapparently so sure that he and his people can get away with what they have donethat he is defying anyone to do anything about it. Attorney General Ashcroftwas apparently not so sure. “History will not judge this kindly," he isreported having said after one meeting. (ABC News, 11 April, 2008.)
The Geneva Conventions,as Alberto Mora told the Pentagon in 2002 and the United States Supreme Courtreaffirmed in 2006, are law, but law, if it is to have teeth, must be enforced,and If it is not, it is little more than a statement of good intentions. AsJustice Anthony Kennedy pointedly observed in Hamdan v. Rumsfeld,“violations of Common Article 3 are considered ‘war crimes’”, but it isgenerally believed today, both in the United States and abroad, that theseviolations, if they are prosecuted, will be prosecuted outside the UnitedStates.
The Center forConstitutional Rights, based in New York, along with the InternationalFederation for Human Rights, other groups and individuals, have filed criminalcomplaints against former Secretary of Defense Rumsfield and others in bothGermany and France. In Germany the complaint was filed under the principle of“universal jurisdiction” for war crimes, which enables the German FederalProsecutor to investigate and prosecute crimes irrespective of the location ofthe defendant or plaintiff, the place where the crime was committed or thenationality of the persons involved. Other defendants included lawyers AlbertoGonzales, Jay Bybee, John Yoo, William Haynes and David Addington.
“It would be wrong to consider theprospect of legal jeopardy unlikely,” Phillippe Sands writes. He recalls beingin the House of Lords in 1999 during the process for Pinochet’s extradition toSpain. One of Pinochet’s aides told him that they had never dreamed anythinglike that could ever happen.
Michael Ratner,President of the Center for Constitutional Rights has said that “we are makingthe world smaller for Rumsfeld” who is not going to be going back to France orGermany. When Bush and Cheney lose their immunity as heads of state in January,2009, he has promised that they are going to go after them too.
I think we should wishthem luck.
[1] Space does not permit a thorough discussion here of the role of civiliancontractors in Iraq. See Blackwater … by*** and, for a more general view of privatized security Shock Doctrine by ***. Suffice to say that the most importantprivate contracting company in Iraq, Blackwater, contributed *** to the Bushcampaign or to cite the case of ***, a Blackwater employee who was gang-rapedin Iraq by x of her fellow workers. The rapists cannot be prosecuted either inthe United States or Iraq because contracts with the US government provideBlackwater employees immunity from criminal prosecution.
[2] Joshua L. Dratel is President of the New York State Association of CriminalDefense Lawyers and is lead defense counsel for David Hicks, an Australiandetainee at Guantanamo.
Published as La Presidencia Imperial in Galinsoga, A. (ed.) El Conflicto de Iraq y el Derecho Internacional: el caso Couso.http://www.abogacia.es/2013/04/29/el-conflicto-de-iraq-y-el-derecho-internacional-el-caso-couso/
El conflicto de Iraq y el Derecho Internacional: el caso Couso
Por Albert Galinsoga Jordà, catedrático de Derecho Internacional Público y Relaciones Internacionales Universidad de Lleida y catedrático “Jean Monnet” de Integración Europea