Jane Mayer - The New Yorker

Annals of Justice: Outsourcing Torture: The New Yorker
ANNALS OF JUSTICE
http://roohit.com/site/showArc.php?shid=bd884
OUTSOURCING TORTURE
The secret history of Americas extraordinary rendition program.
by Jane Mayer
FEBRUARY 14, 2005
n January 27th, President Bush, in an interview with the Times, assured the world that torture is never acceptable, nor do we hand over people to countries that do torture. Maher Arar, a Canadian engineer who was born in Syria, was surprised to learn of Bushs statement. Two and a half years ago, American officials, suspecting Arar of being a terrorist, apprehended him in New York and sent him back to Syria, where he endured months of brutal interrogation, including torture. When Arar described his experience in a phone interview recently, he invoked an Arabic expression. The pain was so unbearable, he said, that you forget the milk that you have been fed from the breast of your mother. Arar, a thirty-four-year-old graduate of McGill University whose family emigrated to Canada when he was a teen-ager, was arrested on September 26, 2002, at John F. Kennedy Airport. He was changing planes; he had been on vacation with his family in Tunisia, and was returning to Canada. Arar was detained because his name had been placed on the United States Watch List of terrorist suspects. He was held for the next thirteen days, as American officials questioned him about possible links to another suspected terrorist. Arar said that he barely knew the suspect, although he had worked with the mans brother. Arar, who was not formally charged, was placed in handcuffs and leg irons by plainclothes officials and transferred to an executive jet. The plane flew to Washington, continued to Portland, Maine, stopped in Rome, Italy, then landed in Amman, Jordan. During the flight, Arar said, he heard the pilots and crew identify themselves in radio communications as members of the Special Removal Unit. The Americans, he learned, planned to take him next to Syria. Having been told by his parents about the barbaric practices of the police in Syria, Arar begged crew members not to send him there, arguing that he would surely be tortured. His captors did not respond to his request; instead, they invited him to watch a spy thriller that was aired on board. Ten hours after landing in Jordan, Arar said, he was driven to Syria, where interrogators, after a day of threats, just began beating on me. They whipped his hands repeatedly with two-inch-thick electrical cables, and kept him in a windowless underground cell that he likened to a grave. Not even animals could withstand it, he said. Although he initially tried to assert his innocence, he eventually confessed to anything his tormentors wanted him to say. You just give up, he said. You become like an animal. A year later, in October, 2003, Arar was released without charges, after the Canadian government took up his cause. Imad Moustapha, the Syrian Ambassador in Washington, announced that his country had found no links between Arar and terrorism. Arar, it turned out, had been sent to Syria on orders
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A Reporter at Large: The Experiment : The New Yorker
http://www.newyorker.com/archive/2005/07/11/050711fa_fact4?printabl...
A REPORTER AT LARGE
THE EXPERIMENT
The military trains people to withstand interrogation. Are those methods being misused at Guantnamo?
by Jane Mayer
JULY 11, 2005
n a steamy morning last month, as Congress was debating the treatment of the approximately five hundred terrorist suspects being held inside the United States-run military detention center in Guantnamo Bay, Cuba, a small delegation of American officials led a tour through one of the prison camps empty cellblocks. The International Committee of the Red Cross has made inspections of the site, the results of which it keeps confidential, and a few dozen American lawyers have had limited visits with detainees. Yet most of the prisoners, who come from some forty countries, have been held virtually incommunicado, without legal charges, for three and a half years. The cellblock, which had been fashioned from steel shipping crates, resembled a horse barn. Six-footby-eight-foot cells, with walls and doors of metal mesh, stood in two facing rows. The cells were protected by a low metal roof but were open to the tropical air. Each door featured a narrow slot, at waist height, through which meals and other items could be handed to detainees, and handcuffs and belly chains could be secured. The first cell on the right was laid out like a display model, with neatly folded prison garb and an array of what the officials called comfort itemsawarded to detainees for good behavior, or confiscated as punishment. Among these luxuries was a roll of toilet paper. The cell was furnished with a thin plastic-covered mattress on a metal slab; a metal sink; a metal toilet; and a surgical mask, which could be hung from the wall, allowing a detainee to store a small Koran inside it. Id be proud to let the media see anything in this camp, Colonel Mike Bumgarner, the commander of the Joint Detention Operations Group, the military unit that oversees the daily handling of detainees, said. Id gladly invite the world in to see our guards in action. Im very proud
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of what they do. They treat the detainees humanely. Meals, he said, were excellent. They get honey-glazed chicken and rice pilaf. They get lemon-baked fish. He noted that some detainees dont like to have their vegetables touching their meat: So we serve them separately, in little Styrofoam clamshells, like the ones you get at a fast-food restaurant. He went on, We have to be like the parents here. In loco parentis. Thats how we look at it. Its like a big family. As we reached the end of the cellblock, hysterical shouts, in broken English, erupted from a caged exercise area nearby. Come here! a man screamed. See here! They are liars! He was middle-aged, with a full beard and skinny bow legs, and wore an orange shirt and shorts. (Privilegedthat is, coperativedetainees wear white or beige uniforms.) No sleep! he yelled. No food! No medicine! No doctor! Everybody sick here! A soldier near the detainee began ferociously signalling to the officials leading the tour to usher me out. As I was leaving, the detainee pointed to his own cellblock, which was off limits to journalists, and screamed, They are liars! Liars! Liars! His English is pretty good, one official joked wanly. The military officials who run the Guantnamo prison maintain that almost all of the detainees charges are untrue. A training manual written by Al Qaeda leaders, which is known as the Manchester Manual, because a copy of it was confiscated during a 2000 raid in England, counsels Islamists to complain of mistreatment while in prison and say that torture was inflicted on them. Bumgarner said, They are trained to make false accusations. Its part of their P.R. Brigadier General Jay W. Hood, the top commander of the camp, has worked to improve administrative control since taking over, in March, 2004. He has implemented random inspections of the cellblocks, to insure that standard operating procedures are being followed, and he has banished regular cavity searches for detainees. Lawyers and human-rights workers say that detainees are being treated less harshly, although their mental state continues to deteriorate. In an interview, Hood said that there have been no demonstrated or consistent trends of abuse inside Guantnamo, and certainly nothing rising to the level of torture. From the beginning, however, the Guantnamo Bay prison camp was conceived by the Bush Administration as a place that could operate outside the system of national and international laws that normally govern the treatment of prisoners in U.S. custody. Soon after September 11th, the Administration argued that the Guantnamo site, which America had been leasing from the Cuban government since 1903, was not bound by the Geneva Conventions. Moreover, the Administration claimed that terrorist suspects detained at the site were not ordinary criminals or prisoners of war; rather, they would be classified under a new rubric, unlawful combatants. This new class of suspects would be tried not in U.S. courts but in military tribunals, the Administration announced. In February, 2002, President Bush issued a broad directive that required American troops to treat detainees humanely, in a manner consistent with the Geneva Conventions, within the limits of military necessity. A year later, he explicitly denounced the use of torture. A series of internal Department of Defense investigations found what General Hood described as
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isolated cases where individuals hadnt followed standard operating procedures. Many of the incidents addressed by the Pentagon had been widely reported in the media, making the camp a focus of international outrage. In one case, a female interrogator, attempting to unsettle a Muslim detainee, smeared fake menstrual blood on him. And on five separate occasions Korans were defiled; one soldier urinated through a ventilation shaft, splashing the textaccidentally, according to the Pentagon. (This spring, Newsweek reported that military investigators had evidence that guards at Guantnamo had flushed a Koran down a toilet. The Bush Administration adamantly denied the charge, and, ultimately, the magazine admitted that it did not have sufficient sourcing to stand by the story.) In each acknowledged case of impropriety at Guantnamo, Hood stressed, the transgressors had been reprimanded, but he doubted that their actions could be said to rise to the level of abuse. Last year, Vice-Admiral Albert T. Church III was appointed by the Pentagon to investigate the problem of detainee abuse. This spring, he released a three-hundred-and-sixty-eight-page report, most of which remains classified. In an unclassified section, Church concluded that there was no link between approved interrogation techniques and detainee abuse. When cruelties did occur, the report claimed, they were rare mishaps, the result of combat stress, insufficient oversight, or a breakdown of good order and discipline. Yet a number of critics, including human-rights officials, detainees lawyers, and others with knowledge of the inner workings of the detention center, believe that the problems at Guantnamo are the result of a more systematic effort. The strange accounts of torment that have steadily emerged, these critics say, are connected to decades of research by American scientists into the psychological nature of warfare and captivity. The research, which began during the Cold War, developed new currency after September 11th, when the Bush Administration declared a global war on terror and began trying to extract intelligence from radical Islamists, many of whom have been trained not to reveal anything about their activities. Since 2001, the critics say, medical and scientific personnel have played a role, largely hidden, in helping to design and monitor interrogations that are intended to exploit the physical and mental vulnerabilities of detainees. According to a former interrogator at Guantnamo who was interviewed at length by a lawyer, behavioral scientists control the most minute details of interrogations, to the point of decreeing, in the case of one detainee, that he would be given seven squares of toilet paper per day. It is both illegal and deeply unethical to use techniques that profoundly disrupt someones personality, Leonard S. Rubenstein, the executive director of Physicians for Human Rights, an advocacy group that has been critical of the Bush Administration, says. But thats precisely what interrogators are doing, in order to try to get people to talk. Baher Azmy, a professor at Seton Hall Law School, in Newark, New Jersey, represents a Guantnamo detainee named Murat Kurnaz, a twenty-three-year-old Turkish citizen who was born in Germany. Kurnaz, who was apprehended while on a trip to Pakistan, has been detained in Guantnamo since 2002. Azmy told me that Kurnaz has complained of being sexually taunted by female interrogators who, he said, offered to have sex with him in exchange for giving information.
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When one woman began embracing him from behind, Kurnaz said, he turned and head-butted her. According to Kurnaz, he was then beaten by members of the Initial Reaction Forces, a militarypolice squad that patrols the cellblocks. Kurnaz claimed that he was made to lie on the floor, with his hands cuffed behind his back, for nearly a day. He also told Azmy that he was threatened with starvation and forcibly injected with unknown and debilitating drugs. (All of Kurnazs charges have been denied by U.S. authorities.) Azmy told me, These psychological gambits are obviously not isolated events. Theyre prevalent and systematic. Theyre tried, measured, and charted. These are ways to humiliate and disorient the detainees. The whole place appears to be one giant human experiment. oncrete evidence of the medical and psychological mistreatment of detainees is all but impossible to obtain, in part because the Justice Department, in contravention of all national and international norms, has repeatedly blocked attempts by lawyers to get copies of detainees medical records. Prisoners, even terrorists, have the right to their medical records, according to federal laws, common laws, the American Medical Association, and court trials, Arthur Caplan, a bioethicist at the University of Pennsylvania, says. In an interview at Guantnamo Bay, Dr. John S. Edmondson, a Navy captain who oversees the facilitys medical command, denied that he had refused to turn over medical records. I believe weve complied with the requests that have reached me, he said. A respect for confidentiality, he said, prevented him from specifying the names of detainees whose medical records he had released. Yet Rob Kirsch, a partner at the law firm Wilmer Hale, who represents six Guantnamo detainees, provided me with a file of letters from the Justice Department denying him access to his clients medical records, even though he had obtained waivers from the clients authorizing their records to be released to him. They still wouldnt let us see the records, he said. Kirsch contends that at Guantnamo medical care is sometimes withheld or dispensed depending on a detainees willingness to talk to interrogators. All his clients, he said, have made this complaint, despite having had no opportunity to talk to one another. One of his clients, Mustafa Ait Idir, was deemed resistant by guards, and they allegedly broke two of his fingers; Idir was not allowed to see a doctor after the incident, Kirsch said, and his hand is now severely misshapen. (Kirsch visited Idir at Guantnamo several times after the hand was damaged.) All six of Kirschs clients have requested dental care to no avail. One clients teeth were so damaged that he was unable to eat regular food; after dental treatment was withheld, the prisoner requested a soft-food diet, which tasted so bad that he lost forty pounds. Edmondson denied that care had been deliberately withheld from any detainee. He also denied that medical professionals under his command had colluded with interrogators. Scott Sullivan, a lawyer at Allen & Overy, a firm that represents eleven detainees from Yemen, alleged that medics under Edmondsons command routinely violated codes of medical ethics. For example, medics supervised the beating of one of his clients, Saeed Abdullah Sarim, he said. After Sarim was hit repeatedly in the face, an English-speaking detainee nearby allegedly told him that a
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medic had tried to calibrate the abuse, saying, Hit him around the eye, not in the eye. After the beating, according to a report compiled by Sullivans firm, Sarim asked a nurse for stitches. The nurse, Sarim said in the report, did not answer me and did not treat the wound. Another client of Sullivans, Abdul Aziz al-Swidi, claimed to have been interrogated by a psychiatrist, who allegedly showed him a picture of a telephone and asked him what it was. When Swidi answered that it was a telephone, the psychiatrist angrily responded, Its not a telephoneits a bomb! Swidi was shown other images and asked to identify them, and each time he was told that his answer was wrong. The goal of the exercise, Sullivan believes, was to make Swidi think that he was going crazy. (We have no records or reports of this allegation, a Guantnamo spokesman said.) Last month, a report in the Times said that doctors at Guantnamo had provided interrogators with information from some detainees medical records. In one case, interrogators were told that a detainee had a profound fear of the dark, and ways were suggested to exploit this phobia, in order to break down the detainees resistance to questioning. Also last month, an article in The New England Journal of Medicine revealed that a military policy statement instructed caregivers at Guantnamo to offer clinical information to interrogation teams on request. And last year a confidential report by the International Committee of the Red Cross, parts of which were leaked to the Washington Post, charged that doctors consulted detainee medical records to help interrogators, in a flagrant violation of medical ethics. Edmondson said that the Red Crosss charges were wrong, but he added that national-security concerns might sometimes justify the breaching of a detainees medical confidentiality. he role of physicians, who take the Hippocratic oath to do no harm, is ethically complicated in wartime. Doctors are often described as having dual loyalties, to patients and to country. But at the Nuremberg trials, after the Second World War, revulsion at Nazi atrocities led to the establishment of rules barring medical mistreatment, even for reasons of national security. A section of the 1950 Geneva Convention, for example, states that no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned. In 1962, the U.S. passed the first law requiring doctors to obtain informed consent from patients. And in 1975 the World Medical Association, or W.M.A., issued the Declaration of Tokyo, which barred medical personnel from participation in either torture or abuse, even as monitors. The American Medical Association is a member of the W.M.A., which means that U.S. doctors must follow its ethical standards. In June, the Pentagon released a new set of formal ethical guidelines, titled Medical Program Principles and Procedures for the Protection and Treatment of Detainees in the Custody of the Armed Forces of the United States. The document, which was issued by Dr. William Winkenwerder, Jr., the Assistant Secretary of Defense for Health Affairs, stresses the importance of upholding the humane treatment of detainees. It states that health-care personnel charged with
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the medical care of detainees cannot participate in interrogations. In this phrase is embedded a troubling loophole, however: scientific and medical personnel who are not directly responsible for a patients care may take part in interrogations. Leonard Rubenstein, of Physicians for Human Rights, argues that the Administration has basically given a green light for medical personnel to participate in abuse. Winkenwerder, who formerly worked in the insurance industry, argues that most of the detainees have never received better care than they have been getting at Guantnamo. The Pentagon, he told me, took extraordinary pains to insure that detainees were treated in compliance with medical ethics and American values, and he presented statistics showing that last year Guantnamo detainees got more frequent medical treatment than most Americans. A state-of-the-art field hospital had been set up on the periphery of the prison camp, he said, and trained Navy medical corpsmen checked on the detainees health and welfare three times a week. A lot of good people are being besmirched by these stories, he said, referring to media reports that have described abuses of detainees at Guantnamo. Winkenwerder did acknowledge, however, that a number of medical and scientific personnel working at Guantnamoincluding psychologists and psychiatristsare not providing care for detainees. Rather, these non-treating professionals have been using their skills to assist the interrogators, as he put it. People working in this advisory capacity are members of what are called Behavioral Science Consultation Teams, or bscts. (In military jargon, the teams are known as Biscuits.) In past wars, the U.S. military has used health-care consultants for therapeutic purposes, to evaluate the combat readiness of soldiers with psychological or physiological problems, and to provide soldiers with counselling and psychotropic drugs. But Major General Geoffrey D. Millerwho commanded the Guantnamo Bay detention center between November, 2002, and March, 2004, and who was then sent by Secretary of Defense Donald Rumsfeld to manage Abu Ghraib prison, in Iraqestablished a new role for health-care advisers. These teams, comprised of operational behavioral psychologists and psychiatrists, are essential in developing integrated interrogation strategies and assessing interrogation intelligence production, Miller explained in an internal report in September, 2003. Winkenwerder told me that bsct members are not under his command; rather, they fall under military intelligence. He said that he knew little about the programs daily operations but had heard that a number of bsct psychologists and psychiatrists had received specialized training. Its connected to some military acronym, he said. Something to do with Survival and Evasion. inkenwerder was referring to a Pentagon-funded program known as sere, which stands for Survival, Evasion, Resistance, and Escape. sere was created by the Air Force, at the end of the Korean War, to teach pilots and other personnel considered at high risk of being captured by enemy forces how to withstand and resist extreme forms of abuse. After the Vietnam War, the program was expanded to the Army and the Navy. Most details of the programs curriculum are
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classified. Each branch of the military now has its own version of sere training. The flagship program is conducted by the Armys John F. Kennedy Special Warfare Center and School, at Fort Bragg, North Carolina, where Green Berets train. There are several levels of sere courses; one, Level C, includes a gruelling exercise in which trainees endure days of physical and psychological hardship inside a mock prisoner-of-war camp. This spring, I spoke at length with several people familiar with the sere programs, including a longtime affiliate. According to these sources, a small number of psychologists and other clinicians oversee the sere program at Fort Bragg. The supervisors discreetly check on trainees progress at frequent intervals, keeping extensive charts and records of their behavior and medical status. Numerous experiments aimed at documenting trainees stress levels have been conducted by sere-affiliated scientists. By analyzing blood and saliva, they have charted fluctuations in trainees level of cortisol, a stress hormone, and these data have been used to understand what inspires maximum anxiety in the trainees. The theory behind the sere program is that soldiers who are exposed to nightmarish treatment during training will be better equipped to deal with such terrors should they face them in the real world. Accordingly, the program is a storehouse of knowledge about coercive methods of interrogation. One way to stimulate acute anxiety, sere scientists have learned, is to create an environment of radical uncertainty: trainees are hooded; their sleep patterns are disrupted; they are starved for extended periods; they are stripped of their clothes; they are exposed to extreme temperatures; and they are subjected to harsh interrogations by officials impersonating enemy captors. (Colonel Hans Bush, a spokesman at Fort Bragg, declined to disclose the details of the specific challenges our students face.) Research in social psychology has shown that a persons capacity for self-regulationthe ability to moderate or control his own behaviorcan be substantially undermined in situations of high anxiety. If, for instance, a prisoner of war is trying to avoid revealing secrets to enemy interrogators, he is much less likely to succeed if he has been deprived of sleep or is struggling to ignore intense pain. According to the sere affiliate and two other sources familiar with the program, after September 11th several psychologists versed in sere techniques began advising interrogators at Guantnamo Bay and elsewhere. Some of these psychologists essentially tried to reverse-engineer the sere program, as the affiliate put it. They took good knowledge and used it in a bad way, another of the sources said. Interrogators and bsct members at Guantnamo adopted coercive techniques similar to those employed in the sere program. Ideas intended to help Americans resist abuse spread to Americans who used them to perpetrate abuse. Jonathan Moreno, a bioethicist at the University of Virginia, is a scholar of state-sponsored experiments on humans. He says, If you know how to help people who are stressed, then you also know how to stress people, in order to get them to talk. arol Darby, a spokeswoman at Fort Bragg, said that the sere program has not deviated from its
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original purpose. In an e-mail, she wrote, sere training is not designed and it does not teach anyone how to interrogate individuals. Students who go through sere are taught methods to resist interrogation techniques that may be used against them; they are taught how to respond when they are on the receiving end of interrogation. Yet many of the interrogation methods used in sere training seem to have been applied at Guantnamo. One component of the training program, called the religious dilemma, parallels Guantnamo detainees chronic complaints about Koran abuse. At sere, trainees in the Level C course are given the choice of seeing a Bible desecrated or revealing secrets to interrogators. They are challenging your faith, the sere affiliate explained. The Holy Book is torn up. They say theyll stop if you talk. Sometimes they rip the Bible and throw it in the air. The goal is to make detainees react emotionally to the desecration. Some trainees who are devout Christians become profoundly disturbed during the exercise. In May, an e-mail written by a graduate of the sere program was posted on Informed Comment, the blog of Juan Cole, a history professor at the University of Michigan, who is critical of the Bush Administration. The e-mail, which was anonymous, asserted, Gitmo must be being used as a laboratory for all these psychological manipulation techniques. Cole provided me with contact information for the sere graduate, and I spoke on the phone with him. He confirmed his identity, but said that he wished to remain anonymous, fearing that his comments about the program might have legal repercussions. The sere graduate explained that he had attended Army Ranger school, and had served on active duty in the Marines for eleven years, part of the time as an intelligence officer. In 1999, he attended the Navys sere training program in Coronado, California. He told me that the program had been very professionally run. But, he said, when he read about the treatment of detainees at Guantnamo he was reminded of his experiences during sere training simulations. On the blog, the graduate offered a detailed account of a sere training exercise. (He confirmed the accounts details with me.) He wrote, One of the most memorable parts of the camp experience was when one of the camp leaders trashed a Bible on the ground, kicking it around, etc. It was a crushing blow, even though this was just a school. The graduate wrote that his experience with the Bible trashing took place towards the end of the camp experience, which was 2-3 days of captivity. He continued:
We were penned in concrete cell blocks about 4' x 4' x 4'told to kneel, but allowed to squat or sit. There was no door, just a flap that could be let down if it was too cold outside (which it was). Each trainee was interrogated to some extent, all experienced some physical interrogation such as pushing, shoving, getting slammed against a wall (usually a large metal sheet set up so that it would not seriously injure trainees), with some actually water-boarded (not me). The Bible trashing was done by one of the top-ranked leaders of the camp, who was always giving us speechessort of making it real so to speak, because it is a pretty contrived environment. But by the end it almost seemed real. Guards spoke English with a Russian accent, wore Russian-looking uniforms. So the Bible trashing happened when this guy had us all in the courtyard sitting for one of his speeches. They were tempting us with a big pot of soup that was boilingwe were all starving from a few days of chow deprivation. He brought out the Bible and started going off on it verballyhow it was worthless, we were forsaken by this God, etc. Then he threw it on the ground and kicked it around. It was definitely the climax of his speech. Then he kicked over the soup pot, and threw us back in the cells. Big climax. And psychologically it was crushing and heartbreaking, and then we were left isolated to contemplate this.
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The sere graduate, who is religious, said that the repeated mistreatment of the Koran at Guantnamo was sickening and immoral. Referring to the interrogators there, he said, They have turned the whole world against us. The graduates claim that waterboarding took place at the Navys sere school was confirmed by the sere affiliate. Waterboarding is intended to simulate drowning and asphyxiation. Khalid Sheikh Mohammed, a top Al Qaeda operative who was apprehended in Pakistan in 2003, has reportedly been subjected to it. (It is unknown if the technique yielded useful intelligence.) In the version used in the Navys sere training program, the affiliate said, the student is bound to an inclined board, his feet higher than his head. A stream of water is then slowly poured up his nose. In sere training, the technique is highly controlled to prevent serious physical harm (although the trainees dont sense this). There is a strict limit of only a few cups of water per student. As an extra precaution, the trainees do jumping jacks first, to elevate their heart rate, which enables them to hold their breath for long periods during the ordeal. Another sere technique that has apparently surfaced at Guantnamo is the use of noise stress. The sere affiliate told me that trainees often think that the interrogation portion of the program will be the most gruelling, but in fact for many trainees the worst moment is when they are made to listen to taped loops of cacophonous sounds. One of the most stress-inducing tapes is a recording of babies crying inconsolably. Another is a Yoko Ono album. Detainees at Guantnamo have reportedly been subjected to blaring audiotapes of loud music, cats meowing, and human infants wailing. Critics also allege that the sere program has become a testing ground for interrogation techniques involving sexual embarrassment and humiliation. (Detainees at Guantnamo have complained of such methods, and the scandal at Abu Ghraib last year revealed that guards there photographed prisoners naked and in sexually humiliating poses.) A former military-intelligence officer who was familiar with practices at Guantnamo told me that a friend who had gone through Level C sere training, which lasts three weeks, said that he had been sexually ridiculed by females during the program. They strip you naked and make you do work while women laugh at the size of your junk, the intelligence officer told me. Apparently, its very humiliating. The sere affiliate described another disturbing training technique: the mock rape. In this exercise, a female officer stands behind a screen and screams as if she were being violated. A trainee is told that he can stop the rape if he coperates with his captors. Erik Saar is a former Army intelligence analyst at Guantnamo and the author of Inside the Wire, published in May, which first disclosed the interrogation incident involving fake menstrual blood. He told me that the perpetrator of this particular form of abuse might have come up with the idea herself. But he said that the notion of using sexual gambits to unnerve detainees was promoted by the bscts, who were these psychiatrists and psychologists from Fort Bragg. He went on, The
bscts
would help interrogators strategize about what techniques to use, and where someone would be
vulnerable, and what the best ways to manipulate them would be. Sex, I believe, came from the bscts.
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I have a hard time thinking it was a couple of rogue interrogators, if thats what the Army says, because it was very systematic. It wasnt hidden. The manipulation of national flags for psychological effect is another element of sere training. The mock captors create psychological stress in trainees by mutilating and burning the American flag, in a procedure known as the flag dilemma. This technique also has echoes in the experience of detainees at Guantnamo. The American Civil Liberties Union recently revealed the contents of a confidential e-mail written by an F.B.I. agent stationed in Guantnamo to his superiors. It describes a detainee sitting on the floor of the interview room with an Israeli flag draped around him, loud music being played and a strobe light flashing. Marc Falkoff, a lawyer defending several Guantnamo detainees, informed me of another flag incident. According to Falkoffs clients, a mass suicide attempt at Guantnamo, in August, 2003, in which two dozen or so detainees tried to hang or strangle themselves, was provoked by instances of Koran mistreatmentincluding one in which the text was allegedly wrapped inside an Israeli flag and stomped on. Although the sere affiliate said that many of the programs officials were careful and dedicated people, he said that some of the folks associated with the program seemed to enjoy using manipulative techniques. Theyd play these very aggressive roles, week after week, he said. It can be very seductive. Although there is no scientific basis for believing that coercive interrogation methods work better than less aggressive ones, the affiliate said that some of the sere psychologists he knew believed that to get someone to talk you have to hurt that person. Retired Army Colonel Patrick Lang, who was both a Special Forces officer and a Defense Intelligence Agency expert on the Middle East, told me that he had attended a sere school as part of Special Forces training, and had found the experience disconcerting: Once, I was on the other side of the exercise, acting as captor and interrogator, he said. If you did too much of that stuff, you could really get to like it. You can manipulate people. And most people like power. Ive seen some of these doctors and psychologists and psychiatrists who really think they know how to do this. But its very easy to go too far. t is not yet possible to pinpoint when ideas from the sere program began to influence interrogations of terrorist suspects. But, as early as March, 2002, James Mitchell, a psychologist formerly affiliated with sere, appeared inside an interrogation room where the C.I.A. was holding a highvalue Al Qaeda suspect. (The interrogation took place at an undisclosed location.) Mitchell worked for years as a sere administrator. In an interview, he said that he is now a private contractor and does not currently work with the Department of Defense. Asked if he has worked with the C.I.A., conducting interrogations, he said, If that was true, I couldnt say anything about it. (A press officer at the C.I.A. also declined to comment on Mitchell.) According to a counter-terrorism expert familiar with the interrogation of the Al Qaeda suspect, Mitchell announced that the suspect needed to be subjected to rougher methods. The man should be treated like the dogs in a classic behavioral-psychology experiment, he said, referring to studies
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performed in the nineteen-sixties by Martin Seligman and other graduate students at the University of Pennsylvania. The dogs were placed in harnesses and given electric shocks that they could not avoid; they were then released into pens and shocked again, but this time they were given a chance to escape the punishment. Most of them, Seligman observed, passively accepted the shocks. They had lapsed into a condition that he called learned helplessness. The suspects resistance, Mitchell was apparently saying, could be overcome by inducing a similar sense of futility. (Seligman, now a psychology professor at Penn, has spoken at a sere school about his dog research.) Mitchells position was opposed by the counter-terrorism expert, who had not spent time at a sere school. He reminded Mitchell that he was dealing with human beings, not dogs. According to the expert, Mitchell replied that the experiments were good science. The expert recalled making the argument that the U.S. should not do things that our enemies do, like using torture. When asked about this incident, Mitchell confirmed that he admired Seligmans research. He declined to comment on any interrogations that he might have taken part in, though he added, I dont have anything to hide. Another scientist connected to sere, Colonel Louie (Morgan) Banks, a senior Army psychologist who is an administrator of the program, has played a significant advisory role in interrogations at Guantnamo Bay. He has recommended that the psychologists working with the bscts in Guantnamo have sere backgrounds. In an interview, Banks said, I do go down to Guantnamo occasionally. I have provided assistance. He said that he saw no problem with psychologists helping in interrogations, as long as they dont break the law. Asked to provide details of his consulting work, he said, I just dont remember any particular cases. I just consulted generally on what approaches to take. It was about what human behavior in captivity is like. Banks emphatically denied that he had advocated the use of sere counter-resistance techniques to break down detainees. When asked about the similarities that have emerged between sere training methods and interrogation practices at Guantnamo, he replied, Im not saying people dont do some stupid things sometimes. Some people who received sere training may have sometimes done things they shouldnt because they misunderstood what the training was about. Im not going to tell you it didnt happen. I cant say that someone didnt say, Hey, lets try waterboarding because theyd seen it at sere. In fact, the problem was pervasive enough so that, last year, Banks introduced a new requirement at sere: graduates must sign a statement promising not to apply the programs counter-resistance methods to U.S.-held detainees. We did this when we learned people were flipping it, he said. Banks has a Ph.D. in psychology from the University of Southern Mississippi. A biographical statement for an American Psychological Association task force on psychological ethics and national security, which Banks serves on, mentions that he provides technical support and consultation to all Army psychologists providing interrogation support. It also notes that, starting in November, 2001, Banks was detailed to Afghanistan, where he spent four months at Bagram Airfield, supporting
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combat operations against Al Qaeda and Taliban fighters. In an interview at Guantnamo Bay, General Hood spoke warmly of Banks. He is a very bright guy, the General said. Hes very qualified. He has assisted in offering assessments on several of our detainees. Esteban Rodriguez, a Cuban-American civilian who has overseen the interrogation program at Guantnamo since July, 2003, as director of the Joint Intelligence Group, told me that Banks had been a valuable adviser, particularly on the subject of resistance to interrogation. I talk to him all the time, Rodriguez told me in his office at Guantnamo. Hes a very good man. Rodriguez has had twenty-six years of experience in the field of interrogation. In the nineteeneighties, he worked for the Defense Intelligence Agency and was stationed in Berlin, where he debriefed migrs from East Germany. In comparison with the Cold War, he said, the war against terrorism seems confusing and uncivilized. You dont know who the enemy is, he said. Speaking of Guantnamo, he said, There are some very dangerous people here. One detainee vowed, if he ever got out, to slit Rodriguezs throat. Rodriguez told me that a number of sere psychologists had been helpful to the bscts at Guantnamo. The sere people have learned the psychology of what prisoners of war go through, he said. As a result, he said, they may have advice, and be able to see certain things going on, such as if this person has been trained in how to avoid interrogation. In such cases, he said, sere officials can offer valuable advice on how to use different tactics. Rodriguez declined to say what kinds of different tactics were used on detainees. He emphasized that with most prisoners his interrogators simply tried to use what he called the direct approach, in order to build rapport. He said that during his tenure waterboarding had never been used on this island. Sex, Rodriguez said, was never offered as an enticement to detainees, but he sometimes used women interrogators, who acted as surrogates for wives and mothers. Its about finding ways to build rapport, he said, adding, I wouldnt rule out coercion. It just has to be the individual cases. He estimated that there had been twenty-eight thousand interrogations since Guantnamo opened. Of these, he guessed that ten to twenty per cent involved tactics other than just talking. We do use additional tactics, he acknowledged. I have a few tools left in my arsenal. I hate to discuss them. He winked. Nothing to do with coercion or fear. Rodriguez told me that only a quarter of the detainees hold any intelligence interest for him at this point. The rest, he said, are no longer being interrogated. Even these detainees, however, could remain incarcerated indefinitely. The Pentagon considers many of them to be security threats. Rodriguez would not reveal which cases sere psychologists had been directly involved in. However, one clue has emerged. On June 3, 2004, General James T. Hill, of the U.S. Southern Command, held a press conference at which he mentioned how interrogators at Guantnamo had tried to break an especially resistant, and presumably important, detainee. (The detainees name was not made public.) The detainee, he explained, had been trained in resistance techniques and was using them. To get him to talk, Hill said, officials at Guantnamo looked for expert help in counterresistance. He said, The staff at Guantnamo, working with behavioral scientists, having gone up to
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our sere school, developed a list of techniques which our lawyers decided and looked at, [and] said were O.K. I sent that list of techniques up to the SecretaryRumsfeldand said, in order for us to get at some of these very high-profile, high-value targets who are resistant to techniques, I may need greater flexibility. Hill, who retired in January, could not be reached for comment. A source familiar with the episode that Hill was describing says that the detainee in question was No. 063, Mohammed al-Qahtani, who was captured in Afghanistan and is reputedly the missing twentieth hijacker in the September 11th conspiracythe plotter who failed to board the United Airlines plane that crashed in Pennsylvania. But by the summer of 2002 military interrogators were reportedly frustrated by their inability to elicit useful information from him. Documents related to interrogation practices that were released by the Administration last year show that in October, 2002, Guantnamo officials asked the Pentagon for permission to use several harsh interrogation techniques on highly resistant detainees, including isolation, sensory deprivation, removal of clothing, hooding, exploitation of the detainees phobias (such as a fear of dogs) to induce stress, and scenarios designed to convince the detainee that death or severely painful consequences are imminent for him and/or his family. The officials also requested permission to use waterboarding. In a memo to General Richard B. Myers, the chairman of the Joint Chiefs of Staff, Hill wrote that he was uncertain whether all the techniques were legal. He expressed concern that some of them might violate the federal statute against torture. Another obvious obstacle was the Uniform Code of Military Justice, which prohibits U.S. forces from engaging in cruelty, maltreatment, or oppression of prisoners, and bars both physical assault and threats of injury. Pentagon lawyers, however, tried to find ways around this, documents released by the Administration show. In October, 2002, Diane Beaver, a lawyer at the Pentagon, wrote a memo to superiors, arguing that waterboarding might be permissible if not done with the specific intent to cause prolonged mental harm, and absent medical evidence that it would. She added, Caution should be exercised with this method, as foreign courts have already advised about the potential mental harm that this method may cause. She noted that physical contact with the detainee will technically constitute an assault under . . . UCMJ. But Beavers memo implied that if an interrogator were to obtain immunity from command authorities in advance, the laws criminalizing waterboarding and other rough techniques could be circumvented. There is no evidence that anyone in the chain of command, apart from Hill, objected to the content of Beavers memo. As it turned out, Rumsfeld did not authorize waterboarding or threats to harm family members. Nevertheless, the documents released by the Administration show that in December, 2002, he signed off on sixteen other aggressive counter-resistance techniques for use on Qahtani and others, beyond those authorized in the Army Field Manual. This June, Time published a report containing excerpts of the interrogation logs, which revealed that Qahtani was forced to strip naked, told to bark like a dog, deprived of the opportunity to use a toilet after having been force-fed liquids intravenously,
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ordered to dance with a mask on his face, sat on by a female interrogator, exposed to loud noise, allowed limited sleep, and forced to pick up piles of trash with his hands cuffed while he was called a pig. According to the Times, Qahtani also underwent a phony kidnapping, during which he was injected with tranquillizers and taken up in a plane wearing blackened goggles. The logs show clearly that a bsct psychologist participated in the interrogation and they reveal that, after three days of sleep deprivation, Qahtani became ill. A doctor was summoned, and the coercion stopped, but even then Qahtani was subjected to noise levels that kept him from sleeping. His heart rate dropped. A brain scan was performed. He was given an ultrasound, to check for blood clots; none were found. Stephen Xenakis, a psychiatrist and former brigadier general in the Army medical corps, questioned whether the doctors involved notified authorities about how ill the treatment was making Qahtani, as is required by virtually every code of medical ethics. In an e-mail, Xenakis told me, The clinical picture indicates that the combined effects of the interrogation over December 4-7 contributed to significant physical and metabolic symptoms such that he required close cardiac monitoring. He is evaluated for blood clots . . . which can be fatal. Xenakis asked whether this carefully monitored interrogation, authorized at the top levels of the Pentagon, put this patient in danger of dying. According to Elena Nightingale, a pediatrician and the co-editor of a 1985 anthology of essays about doctors and torture, The Breaking of Bodies and Minds, medical experts are often called on to assist with torture, because people trust and confide in them, which is useful to torturers, and because they have the know-how to keep a person under torture alive, so that more information can be extracted. Dr. Darryl Matthews, a psychiatrist whom the Army brought in as a consultant after many suicide attempts at Guantnamo, and who has since become a critic of conditions at the prison camp, told me, As psychiatrists, we know how to hurt people better than others. We can figure out what buttons to push. Like a surgeon with a scalpel, we have techniques and we know what the pressure points are. Leonard Rubenstein, of Physicians for Human Rights, described the role of psychologists and medical personnel in the Qahtani interrogation as conduct thats been considered forbidden for thirty years. Psychologists, he said, are subject to the same standards as medical doctors. Of course they cant participate in coercive interrogations! he said. Its clear as day. You cant advise, you cant develop plans, you cant review interrogations, you cant sign off on them, and you cant even be present in the room. The Pentagon has argued that Qahtanis treatment was rough but always humane. However, documents released by the A.C.L.U. reveal that F.B.I. officials were disturbed when they learned of it. In May, 2004, for instance, an F.B.I. memo entitled Detainee Interviews (Abusive Interrogation Issues) noted the Bureaus concerns and objections to sere techniques to interrogate prisoners. In August of that year, an F.B.I. agent who visited Guantnamo sent an e-mail to his superiors. On a couple of occasions, I entered interview rooms to find a detainee chained hand and foot in a
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fetal position to the floor, with no chair, food or water, he wrote. Most times they had urinated or defecated on themselves, and had been left there for 18 to 24 hours or more. The agent related that he had also visited an almost unconscious prisoner in a room where the temperature was probably well above 100 degrees. There was a pile of hair next to him. (He seemed to have pulled out his own hair.) In a subsequent letter, other F.B.I. agents claimed to have observed, in November, 2002, a Guantnamo detainee after he had been subjected to intense isolation for over three months. The letter continues, During that time period, [the detainee] was totally isolated (with the exception of occasional interrogations) in a cell that was always flooded with light. By late November, the detainee was evidencing behavior consistent with extreme psychological trauma (talking to non-existent people, reporting hearing voices, crouching in a corner of the cell covered with a sheet for hours on end). Soon after the establishment of the Guantnamo camp, the F.B.I. sent several of its top counterterrorism agents to the prison to interview detainees. By the fall of 2002, these agents believed that they were making progress with detainees, including Qahtani, by slowly establishing a dynamic of friendly rapport. According to several sources at the F.B.I., when General Miller assumed his administrative role at Guantnamo he became impatient with the F.B.I. interrogations, and insisted that harsher methods be used. The agents said that even if other interrogators managed to break the detainees through force the intelligence would be unreliable, and it would be impossible to prosecute the cases in any U.S. court. These clashes are now under investigation by the Justice Departments Inspector General, who is trying to determine if laws were broken during interrogations at Guantnamo and elsewhere. former F.B.I. official who has extensive experience interviewing terrorist suspects spoke to me at length about his battles with Department of Defense officials. The former official said that he had used only noncoercive, rapport-based techniques in his interviews with terrorist suspects. You can know how evil suspects are, and still make them think youre their friend, he said. The former official said that he and other F.B.I. agents didnt want to interview detainees without first reading them their Miranda rights. But the military officers argued that if detainees were read their rights theyd be able to get lawyers and due process, which would clog the whole system. The former official said that he told a Pentagon official, Some of these techniques, I dont want to see, or be part of. I took an oath to the Constitution to uphold the laws against enemies both inside the U.S. and out. He recalled, The D.O.D. guy got really upset. He said he took the oath, too. I told him that we must have different interpretations, then. (A Pentagon spokesman said, Miranda rights are not applicable to enemy combatants detained in the war on terrorism. . . . They are treated in accordance with the Geneva Conventions subject to military necessity.) The former F.B.I. official said that he opposed coercion on practical grounds, as much as anything else. I dont believe these things make successful strategiessensory deprivation and
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such, he said. Theres a big lack of knowledge about the mind-set of extremists. Doing these things just makes them more determined to hate us. And eventually they are going to be released. When they are, theyre going to talk and exaggerate what happened to them. Theyre going to become heroes. So then well have more extremist networks and more suicide bombers. He also felt that there was a moral imperative to avoid coercive interrogations. We cant go down to the level of our enemies, he said. If we do, its going to come back at us later on. Officials at the Washington headquarters of the Naval Criminal Investigative Service were also incensed by the use of coercive techniques at Guantnamo. Some N.C.I.S. officials are participating in a combined task force preparing detainee cases for eventual prosecution, and they had access to computerized versions of the interrogation logs at Guantnamo. When the officials read the details of Qahtanis interrogation, they had an extraordinary internal dispute. According to a passage in Vice-Admiral Churchs report that is unclassified but has not been released to the public, in December, 2002, Dr. Michael Gelles, the chief psychologist at the N.C.I.S., spoke with Alberto J. Mora, the Navys general counsel, saying that, in his professional opinion, abusive techniques and coercive psychological procedures were being used on Qahtani at Guantnamo. Gelles warned of a phenomenon known as force drift, in which interrogators encountering resistance begin to lose the ability to restrain themselves. In July, 2004, Mora wrote a memo to Churchs investigative team, in which he recounted his discussion with Gelles. He said that he had found the tactics he had read about in the Qahtani interrogation logs to be unlawful and unworthy of the military services. Mora argued that these practices threaten the entire military commission process. According to the Church report, an N.C.I.S. official subsequently said that if the abusive practices continued N.C.I.S. would have to consider whether to remain co-located in Guantnamo. According to a recent ABC News report, in January, 2003, Mora also told William J. Haynes, the Pentagons general counsel, that the use of coercive techniques could expose both interrogators and their administrators to criminal prosecution. That same month, Rumsfeld suspended his earlier authorization of harsh interrogation methods at Guantnamo. He put together a working group on the subject of interrogation, which, on March 6, 2003, drafted a memo stating that to continue using such aggressive techniques would require Presidential authorization. There is no evidence to date that such an authorization was granted. Eight days after the release of the draft memo, the Justice Departments Office of Legal Counsel released a classified legal opinion clarifying the Administrations policy on interrogation. Vice-Admiral Church was allowed to read the document, but he was not given a copy. According to Church, the memos language was virtually identical to an August, 2002, memo approved by Jay S. Bybee, then the assistant attorney general, in which torture was defined as anything causing pain comparable to physical injury such as organ failure, impairment of bodily function, or even death. The pressure on interrogators, meanwhile, particularly during 2002 and 2003, remained intense. The military-intelligence officer who was familiar with practices at Guantnamo told me that the
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order from above was Get me results! He said, There was huge frustration. General Miller really unleashed a lot of aggressive tactics. He added, At the time, we didnt even understand what Al Qaeda was. We thought the detainees were all masterminds. It wasnt the case. Most of them were just dirt farmers in Afghanistan. Earlier this year, a former interrogator at Guantnamo, whose statement to a lawyer was obtained by The New Yorker, said that he had refused to use more assertive methods on the detainees, and had incurred the anger of his superiors. Extensive records of interrogations were meticulously kept, he said, in what were called knowledgeability briefs, copies of which were sent to officials at the Pentagon. The former interrogator said that bsct psychologists were heavily involved in drawing up and monitoring interrogation plans, which were designed individually for each detainee. At least one of the bsct scientists he worked with, he said, was a medical doctor. Sleep deprivation was such a common technique, he said, that the interrogators called the process of moving detainees every hour or two from one cell to another the frequent-flier program. He said that interrogators also used pornography to manipulate detainees, giving pictures as a reward to compliant prisoners who were not religious, and forcing noncompliant Muslims to look at them. Detainees were routinely shackled in painful stress positions. The interrogator said that he overheard colleagues talking about the possibility of waterboarding detainees, but he never saw waterboarding used himself. Until the spring of 2003, the former interrogator said, he had open access to detainees medical histories. But after that he had to go to the medical staff whenever he had a health-related question, and a staff person would retrieve the records. As an example, the interrogator provided details of a medical problem involving a detainee who claimed that his eyesight was deteriorating. The interrogator said he knew that the detainee had a genuine problem with his eyes, because I read it in his medical files. When he mentioned the detainees medical complaints to authorities, he said, they refused to do anything, saying, Fuck him. He should have gotten the medical help before he went on his jihad. A Guantnamo detainee who appears to fit this description is Rhuhel Ahmed. In 2004, Ahmed, a British citizen, was released without charges. A statement put out by his lawyer says, in part, Rhuhel in particular has suffered irreversible damage to his eyes. He suffers from a condition where the cornea of his eye is misshapen (into a shape like a rugby ball). The condition is controllable by a gas-permeable contact lens. . . . Throughout the time he was at Guantnamo, he was urgently asking for lenses. . . . No lenses were ever provided. . . . His eyesight has drastically deteriorated as a result. In the former interrogators view, fewer than a quarter of the detainees had any intelligence value. More important, he said that most of the coercive methods used on the detainees at Guantnamo were counterproductive. As he explained to the lawyer, If you dont have a terrorist now, you will by the time he leaves.
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steban Rodriguez, the chief of interrogations, said that the interrogations at Guantnamo have provided invaluable information that may have saved American lives. He said that he still uses bsct members in interviews with detainees. He also said that he doesnt use techniques such as sleep deprivation, sexual humiliation, or isolation. I have no place to isolate people! he said. This argument seemed dubious after I toured Camp Five, a new maximum-security facility in Guantnamo Bay, in which high-value detainees are confined in sealed white climate-controlled cells. (Officials later explained that they call this segregation, not isolation.) Lawyers for the detainees also dispute Rodriguezs claim. Although they acknowledge that the situation at Guantnamo has improved, they say that some of the aggressive techniques are still practiced. Joshua Colangelo-Bryan, an associate at Dorsey & Whitney, a law firm that represents six detainees from Bahrain, recently told me, I have clients who have been kept for over a year in cells by themselves. Other than for interrogations or occasional showers, they are allowed out of their cells for no more than an hour of exercise a week, during which they are alone in small exercise pens. That those who run Guantnamo choose not to describe these arrangements as isolation or solitary confinement does not change reality. My clients have been utterly deprived of human contact other than with interrogators and guardsfor over a year and, according to the government, could be deprived of human contact for the rest of their lives. During Colangelo-Bryans last two visits to Guantnamo, in October, 2004, and March, 2005, one of his clients, Jumah al-Dossari, a Bahraini whom U.S. authorities caught in the Tora Bora region of Afghanistan, described his experience. Dossari said that a man who called himself Dr. P.and who military police told him was a psychiatristhad ordered him placed in isolation and deprived of both toilet paper and water for washing himself. Another psychiatrist quizzed him in detail about his childhood. On a separate occasion, he said, an interrogator wrapped him in Israeli and American flags. The interrogator told him that there was a war going on between the Star of David and the Cross, on one side, and the Red Crescent, on the other. Then, Dossari said, the interrogator stepped on a Koran. Dossari told Colangelo-Bryan that he found the whole experience bizarre. Dossari also claimed that he was beaten by riot police after he complained about personal items having been moved in his cell. During the beating, which was corroborated by Human Rights Watch, his head was bashed so hard against the metal floor that he fainted. He was taken to the naval hospital, where he was given a brain scan. According to Dr. Edmondson, the Navy captain, no doctor raised any questions with him about abusive treatment of Dossari. Dossari also told Colangelo-Bryan that one time he was taken into an interrogation room whose door was open to an adjacent room filled with computers. Military police shackled him to the floor, he said. In the computer room, a naked man and woman were having sex on a table. Afterward, he said, the man put on his clothes and started to question him, telling him that if he coperated he, too, could have sex with his girlfriend. Dossari said that he did not respond. (Esteban Rodriguez said
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that he had never heard of such an incident.) Dossari claims to have spent the past eighteen months in solitary confinement. Colangelo-Bryan said that he had concerns about his clients mental state. He told me, On the last day of one visit, as I was about to leave, he looked me directly in the eye and in a very quiet voice asked, What can I do to keep myself from going crazy? Exerting psychic stress is, of course, the goal of the sere program. To the extent that scientists and doctors are implicated in this process, Jonathan Moreno, the bioethicist, worries that Guantnamo is going to haunt us for a long time. He said, The Hippocratic oath is the oldest ethical code we have. We might abandon our morality about other professions. But the medical profession is sort of the last gasp. If we give that up, weve given up our core values.
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Annals Of The Pentagon: The Memo : The New Yorker
http://www.newyorker.com/archive/2006/02/27/060227fa_fact?printable...
ANNALS OF THE PENTAGON
THE MEMO
How an internal effort to ban the abuse and torture of detainees was thwarted.
by Jane Mayer
FEBRUARY 27, 2006
ne night this January, in a ceremony at the Officers Club at Fort Myer, in Arlington, Virginia, which sits on a hill with a commanding view across the Potomac River to the Washington Monument, Alberto J. Mora, the outgoing general counsel of the United States Navy, stood next to a podium in the clubs ballroom. A handsome gray-haired man in his mid-fifties, he listened with a mixture of embarrassment and pride as his colleagues toasted his impending departure. Amid the usual tributes were some more pointed comments. Never has there been a counsel with more intellectual courage or personal integrity, David Brant, the former head of the Naval Criminal Investigative Service, said. Brant added somewhat cryptically, He surprised us into doing the right thing. Conspicuous for his silence that night was Moras boss, William J. Haynes II, the general counsel of the Department of Defense. Back in Hayness office, on the third floor of the Pentagon, there was a stack of papers chronicling a private battle that Mora had waged against Haynes and other top Administration officials, challenging their tactics in fighting terrorism. Some of the documents are classified and, despite repeated requests from members of the Senate Armed Services Committee and the Senate Judiciary Committee, have not been released. One document, which is marked secret but is not classified, is a twenty-two-page memo written by Mora. It shows that three years ago Mora tried to halt what he saw as a disastrous and unlawful policy of authorizing cruelty toward terror suspects. 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 Guantnamo Bay, Cuba. It reveals that Moras criticisms of Administration policy were unequivocal,
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wide-ranging, and persistent. Well before the exposure of prisoner abuse in Iraqs Abu Ghraib prison, in April, 2004, Mora warned his superiors at the Pentagon about the consequences of President Bushs 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, Moras 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 Guantnamo 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. Moras memo, however, shows that almost from the start of the Administrations 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. Mora had some victories. America has a lot to thank him for, Brant, the former head of the N.C.I.S., told me. But those achievements were largely undermined by a small group of lawyers closely aligned with Vice-President Cheney. In the end, Mora was unable to overcome formidable resistance from several of the most powerful figures in the government. Brant had joked at the farewell party that Mora was an incredible publicity hound. In fact, Morawhose status in the Pentagon was equivalent to that of a four-star generalis known for his professional discretion, and he has avoided the press. This winter, however, he agreed to confirm the authenticity and accuracy of the memo and to be interviewed. A senior Defense Department official, whom the Bush Administration made available as a spokesman, on the condition that his name not be used, did so as well. Mora and the official both declined to elaborate on internal Department of Defense matters beyond those addressed in the memo. Mora, a courtly and warm man, is a cautious, cerebral conservative who admired President Reagan and served in both the first and the second
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Bush Administrations as a political appointee. He strongly supported the Administrations war on terror, including the invasion of Iraq, and he revered the Navy. He stressed that his only reason for commenting at all was his concern that the Administration was continuing to pursue a dangerous course. Its my Administration, too, he said. ora first learned about the problem of detainee abuse on December 17, 2002, when David Brant approached him with accusations of wrongdoing at Guantnamo. As head of the Naval Criminal [Investigative] Service, Brant often reported to Mora but hadnt dealt with him on anything so sensitive. I wasnt 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 wasnt hopeful when he went to Moras office that afternoon. When we spoke, Mora recalled the mood at the Pentagon at the time, just fifteen months after the September 11th attacks. The mentality was that we lost three thousand Americans, and we could lose a lot more unless something was done, he said. It was believed that some of the Guantnamo detainees had knowledge of other 9/11-like operations that were under way, or would be executed in the future. The gloves had to come off. The U.S. had to get tougher. Mora had been inside the Pentagon on September 11th and recalled the jetliner crashing into the building one facet over. He said that it felt jarring, like a large safe had been dropped overhead. From the parking lot, he watched the Pentagon burn. The next day, he said, he looked around a room full of top military leaders, and was struck by the thought that these guys were going to be the tip of the spear. Brant oversaw a team of N.C.I.S. agents working with the F.B.I. at Guantnamo Bay, in what was called the Criminal Investigative Task Force. It had been assigned to elicit incriminating information from the nearly six hundred detainees being held there. Unlike a group run by Army intelligence, Joint Task Force 170, or J.T.F.-170, which was looking for intelligence that would help American authorities determine Al Qaedas next move, Brants investigators gathered evidence that eventually could be used for prosecutions in military tribunals or civilian courts. He and his agents had experience and training in law enforcement: Brant, a civilian, holds an advanced degree in criminology, and worked as a policeman in Miami in the nineteen-seventies. Brant informed Mora that he was disturbed by what his agents told him about the conduct of military-intelligence interrogators at Guantnamo. These officials seemed poorly trained, Brant said, and were frustrated by their lack of success. He had been told that the interrogators were engaging in escalating levels of physical and psychological abuse. Speaking of the tactics that he had heard about, Brant told me, Repugnant would be a good term to describe them. Much of Brants 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 Armys interrogation logs at Guantnamo. 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.
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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 hijackerthe 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 womens 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, Qahtanis 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 didnt 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 didnt 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 Brants position, showing that all C.I.T.F. personnel were ordered to stand clear and report any abusive interrogation tactics. Brant thinks that the Armys interrogation of Qahtani was unlawful. If an N.C.I.S. agent had engaged in such abuse, he said, we would have relieved, removed, and taken internal disciplinary action against the individuallet alone whether outside charges would have been brought. Brant said he feared that such methods would taint the cases his agents needed to make against the detainees, undermining any attempts to prosecute them in a court of law. He also doubted the reliability of forced confessions. Moreover, he told me, it just aint right. Another military official, who worked closely with Brant and who has been denied permission to speak on the record, told me that the news rocked Mora. The official added that Mora was visionary about this. He quickly grasped the fact that these techniques in the hands of people with this little training spelled disaster. In his memo, Mora noted that Brant asked him if he wanted to hear more about the situation. He wrote, I responded that I felt I had to. ora 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. Klaras 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
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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 Moras great-uncles had been interned in a Nazi concentration camp, and another was hanged after having been tortured. Moras first memory, as a young child, is of playing on the floor in his mothers 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. At the time, Moras family was living in Cuba. His father, a Harvard-trained physician, had taken his wife and infant son back in 1952. When Castro seized power, seven years later, the family barely escaped detention after a servant informed the authorities that they planned to flee to America. In the ensuing panic, Alberto obtained an emergency passport from the American Embassy in Havana. This was my first brush with the government, he said. When I swore an oath of allegiance to the American government, part of the oath involved taking up arms to defend the country. And I was thinking, This is a serious thing for me to be an eight-year-old boy, raising my hand before the American vice-consul and taking the oath of allegiance. Cuban customs officials, seeing Albertos American passport, threatened not to let him board a ship. At the last minute, one of his fathers colleagues, who had been put in charge of the port, allowed Albertos emigration. Moras family settled in Jackson, Mississippi, where his father taught at the state medical school and Mora attended a Catholic school. For the most part, Jackson was a wonderful place, Mora recalled, although it was also very conservative. Racism was rampant and everyone, including Mora, backed Barry Goldwater in the 1964 election. Mora had never met anyone who opposed the Vietnam War until he enrolled at Swarthmore College, a school that he chose after reading an S.A.T.-preparation booklet that described it as small and especially rigorous. He also had never met a feminist before going to hear Kate Millett speak at Bryn Mawr, during his freshman year; her talk infuriated him. After growing up in the South among friends who played sports, drank beer, and had a good time, he found the Northeastern liberal lite curiously nerdish. The girls had thrown away their skirtsif theyd ever had them, he jokedand there were no parties. Yet he loved the intellectual environment. You just had these intense discussions, he recalled. I revelled in it. Mora said that he was the only person among his friends who wasnt a conscientious objector to the war. Mora graduated in 1974 with honors, and joined the State Department, working in Portugal; in 1979, he entered law school in Miami. Finding litigation work more a living than a life, Mora said, he was happy to get an appointment as general counsel of the U.S. Information Agency in the first Bush Administration. During the Clinton years, he was appointed to a Republican seat on the Broadcasting Board of Governors, where he was an advocate for Radio Mart, the American news operation aimed at Cuba. He also practiced international law in several private firms. When George W. Bush was elected, Morawith the backing of former Defense Secretary Frank Carlucci, whom he had befriended in Portugalwas appointed general counsel of the Navy. He expected to spend
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most of his time there streamlining the budget. he day after Moras first meeting with Brant, they met again, and Brant showed him parts of the transcript of Qahtanis interrogation. Mora was shocked when Brant told him that the abuse wasnt 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 focussed too narrowly on allegations of U.S.-sanctioned torture. As he sees it, the authorization of cruelty is equally pernicious. To my mind, theres 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 Americaeven those designated as unlawful enemy combatants. If you make this exception, the whole Constitution crumbles. Its a transformative issue. Mora said that he did not fear reprisal for stating his opposition to the Administrations emerging policy. It never crossed my mind, he said. Besides, my mother would have killed me if I hadnt 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 isnt only how to protect the country. Its 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 Guantnamo. Mora said that Morello answered, I know a lot about it. Come on down. In Morellos office, Mora saw what he now refers to as the packagea collection of secret military documents that traced the origins of the coercive interrogation policy at Guantnamo. It began on October 11, 2002, with a request by J.T.F.-170s commander, Major General Michael Dunlavey, to make interrogations more aggressive. A few weeks later, Major General Geoffrey Miller assumed command of Guantnamo 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 Moras memo, Morello is quoted as saying that we tried to stop it. But he was told not to ask questions. According to a participant in the meeting, Mora was ashen-faced when he read the package.
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The documents included a legal analysis, also dated October 11th, by Lieutenant Colonel Diane Beaver, who was then the top legal adviser to J.T.F.-170. She noted that some of the more brutal counter-resistance techniques under consideration at Guantnamo, such as waterboarding (for which soldiers had been court-martialled in earlier conflicts), might present legal problems. She acknowledged that American military personnel at Guantnamo, as everywhere else in the world, were bound by the Uniform Code of Military Justice, which characterizes cruelty, maltreatment, threats, and assault as felonies. Beaver reasoned, however, that U.S. soldiers preparing to violate these laws in their interrogations might be able to obtain permission, or immunity from higher authorities in advance. The senior Defense Department official designated to speak for the Administration acknowledged that Beavers legal argument was inventive. Normally, you grant immunity after the fact, to someone who has already committed a crime, in exchange for an order to get that person to testify, he said. I dont know whether weve ever faced the question of immunity in advance before. Nevertheless, the official praised Beaver for trying to think outside the box. I would credit Diane as raising that as a way to think about it. (Beaver was later promoted to the staff of the Pentagons Office of General Counsel, where she specializes in detainee issues.) Mora was less impressed. Beavers brief, his memo says, was a wholly inadequate analysis of the law. It held that cruel, inhuman, or degrading treatment could be inflicted on the Guantnamo detainees with near impunity; in his view, such acts were unlawful. Rumsfelds December 2nd memo approving these counter-resistance techniques, Mora wrote, was fatally grounded on these serious failures of legal analysis. Neither Beaver nor Rumsfeld drew any bright line prohibiting the combination of these techniques, or defining any limits for their use. He believed that such rhetorical laxity could produce effects reaching the level of torture, which was prohibited, without exception, under both U.S. and international law. Mora took his concerns to Gordon England, the Secretary of the Navy, who is now the Deputy Secretary of Defense. Then, on December 20th, with Englands authorization, Mora went to William Haynes, the Pentagons general counsel; they met in Hayness office, an elegant suite behind vault-like metal doors. In confronting Haynes, Mora was engaging not just the Pentagon but also the Vice-Presidents office. Haynes is a protg of Cheneys influential chief of staff, David Addington. Addingtons 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 committees Republican minority, arguing that the law banning covert aid to the Contrasthe heart of the scandalwas 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.
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After George W. Bush took office, Addington came to the White House with Cheney, and Haynes took his bosss old job at the Pentagon. Addington has played a central part in virtually all of the Administrations legal strategies, including interrogation and detainee policies. The office of the Vice-President has no statutory role in the military chain of command. But Addingtons 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 Octopushis hands seemed to reach into every legal issue. Haynes rarely discussed his alliance with Cheneys 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 Rumsfelds memo permitted was torture. According to Mora, Haynes replied, No, it isnt. 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 Hayness 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 Rumsfelds scrawled aside. It said, Carte blanche, guys, Wilkerson told me. Thats what started them down the slope. Youll 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.
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he authorization of harsh interrogation methods which Mora had seen was no aberration. Almost immediately after September 11th, the Administration had decided that protecting the country required extraordinary measures, including the exercise of executive powers exceeding domestic and international norms. In January, 2002, Alberto Gonzales, then the White House counsel (he is now the Attorney General), sent a memo to President Bush arguing for a new paradigm of interrogation, declaring that the war on terror renders obsolete the strict limitations on questioning of enemy prisoners required by the Geneva conventions, which were ratified by the United States in 1955. That August, the Justice Departments Office of Legal Counsel, which acts as an in-house law firm for the executive branch, issued a memo secretly authorizing the C.I.A. to inflict pain and suffering on detainees during interrogations, up to the level caused by organ failure. This document, now widely known as the Torture Memo, which Addington helped to draft, also advised that, under the doctrine of necessity, the President could supersede national and international laws prohibiting torture. (The document was leaked to the press in 2004, after the Abu Ghraib scandal broke.) Lawrence Wilkerson, whom Powell assigned to monitor this unorthodox policymaking process, told NPR last fall of an audit trail that ran from the Vice-Presidents office and the Secretary of Defense down through the commanders in the field. When I spoke to him recently, he said, I saw what was discussed. I saw it in spades. From Addington to the other lawyers at the White House. They said the President of the United States can do what he damn well pleases. People were arguing for a new interpretation of the Constitution. It negates Article One, Section Eight, that lays out all of the powers of Congress, including the right to declare war, raise militias, make laws, and oversee the common defense of the nation. Cheneys view, Wilkerson suggested, was fuelled by his desire to achieve a state of perfect security. He said, I cant fault the man for wanting to keep America safe, but hell corrupt the whole country to save it. (Wilkerson left the State Department with Powell, in January, 2005.) At the time, the Administrations embrace of interrogation measures normally proscribed by the Army Field Manual remained largely unknown to the public. But while Mora was on Christmas vacation, the Washington Post published a story, by Dana Priest and Barton Gellman, alleging that C.I.A. personnel were mistreating prisoners at the Bagram military base, in Afghanistan. Kenneth Roth, the director of Human Rights Watch, warned that if this was true U.S. officials who knew about it could be criminally liable, under the doctrine of command responsibility. The specific allegations closely paralleled what Mora had seen authorized at Guantnamo. Upon returning to work on January 6, 2003, Mora was alarmed to learn from Brant that the abuse at Guantnamo had not stopped. In fact, as Time reported last year, Qahtani had been stripped and shaved and told to bark like a dog. Hed 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.
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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 Pentagons 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 Moras memo, when he told him how disappointed he was that nothing had been done to end the abuse at Guantnamo, 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 moralthough still not legalto 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, shouldnt there be a public debate? Mora said he doubted that Guantnamo 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 scrutinysuch as the notion that Guantnamo 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 Administrations argument that detainees had no right to challenge their imprisonment in American courts. That month, in a related case, Justice Sandra Day OConnor declared that a state of war is not a blank check for the President.) Mora told Haynes that, if the Pentagons theories of indemnity didnt hold up in the courts, criminal charges conceivably could be filed against Administration officials. He added that the interrogation policies could threaten Rumsfelds tenure, and could even damage the Presidency. Protect your client! he said. Haynes, again, didnt say much in response, but soon afterward, at a meeting of top Pentagon officials, he mentioned Moras concerns to Secretary Rumsfeld. A former Administration official told me that Rumsfeld was unconcerned; he once more joked that he himself stood eight hours a day, and exclaimed, Torture? Thats not torture! (His attitude was Whats the big deal? the former official said.) A subordinate delicately pointed out to Rumsfeld that while he often stood for hours it was because he chose to do so, and he could sit down when he wanted. Victoria Clarke, the Pentagon spokeswoman, also argued that prisoner abuse was bad from a public-relations perspective. (Clarke declined to discuss her conversations with Administration officials, other than to say that she regarded Mora as a very thoughtful guy, who I believed had a lot of important things to say.) By mid-January, the situation at Guantnamo had not changed. Qahtanis enhanced interrogation, as it was called in some documents, was in its seventh week, and other detainees were also being subjected to extreme treatment. Mora continued to push for reform, but his former
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Pentagon colleague told me that people were beginning to roll their eyes. It was like Yeah, weve already heard this. On January 15th, Mora took a step guaranteed to antagonize Haynes, who frequently warned subordinates to put nothing controversial in writing or in e-mail messages. Mora delivered an unsigned draft memo to Haynes, and said that he planned to sign it out that afternoonmaking it an official documentunless the harsh interrogation techniques were suspended. Moras draft memo described U.S. interrogations at Guantnamo as at a minimum cruel and unusual treatment, and, at worst, torture. By the end of the day, Haynes called Mora with good news. Rumsfeld was suspending his authorization of the disputed interrogation techniques. The Defense Secretary also was authorizing a special working group of a few dozen lawyers, from all branches of the armed services, including Mora, to develop new interrogation guidelines. Mora, elated, went home to his wife and son, with whom he had felt bound not to discuss his battle. He and the other lawyers in the working group began to meet and debated the constitutionality and effectiveness of various interrogation techniques. He felt, he later told me, that no one would ever learn about the best thing Id ever done in my life. 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 interrogationseffectively superseding the working group. There was only one copy of the opinion, and it was kept in the office of the Air Forces 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 governments internment of JapaneseAmericans 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 Addingtons 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
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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 Presidents 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 Yoos opinion, he wrote that at Guantnamo 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 Presidents Commander-in-Chief authority, Mora wrote in his account. Yoos opinion didnt 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 workers 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 Presidents 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. In an e-mail response to questions this month, Yoo, who is now back at Berkeley, defended his opinion. The war on terrorism makes Youngstown more complicated, he said. The majority opinion explicitly said it was not considering the Presidents powers as Commander-in-Chief in the theater of combat. The difficulty for Youngstown created by the 9/11 attacks is that the theater of combat now includes parts of the domestic United States. He also argued that Congress had ceded power to the President in its authorization of military force against the perpetrators of the September 11th attacks. Mora concluded that Yoos opinion was profoundly in error. He wrote that it was clearly at variance with applicable law. When we spoke, he added, If everything is permissible, and almost nothing is prohibited, it makes a mockery of the law. A few days after reading Yoos opinion, he sent an e-mail to Mary Walker, saying that the document was not only fundamentally in error but dangerous, because it had the weight of law. When the Office of Legal Counsel issues an opinion on a policy matter, it typically requires the intervention of the Attorney General or the President to reverse it. Walker wrote back, I disagree, and I believe D.O.D. G.C.Haynes, the Pentagons general counseldisagrees. On February 6th, Mora invited Yoo to his office, in the Pentagon, to discuss the opinion. Mora
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asked him, Are you saying the President has the authority to order torture? Yes, Yoo replied. I dont think so, Mora said. Im not talking policy, Yoo said. Im just talking about the law. Well, where are we going to have the policy discussion, then? Mora asked. Mora wrote that Yoo replied that he didnt know; maybe, he suggested, it would take place inside the Pentagon, where the defense-policy experts were. (Yoo said that he recalled discussing only how the policy issues should be debated, and where. Torture, he said, was not an option under consideration.) But Mora knew that there would be no such discussion; as the Administration saw it, the question would be settled by Yoos opinion. Indeed, Mora soon realized that, under the supervision of Mary Walker, a draft working-group report was being written to conform with Yoos arguments. Mora wrote in his memo that contributions from the working group began to be rejected if they did not conform to the OLCOffice of Legal Counselguidance. The draft working-group report noted that the Uniform Code of Military Justice barred maltreatment but said, Legal doctrine could render specific conduct, otherwise criminal, not unlawful. In an echo of the Torture Memo, it also declared that interrogators could be found guilty of torture only if their specific intent was to inflict severe physical pain or suffering as evidenced by prolonged mental harm. Even then, it said, echoing Yoo, the Commander-in-Chief could order torture if it was a military necessity: Congress may no more regulate the Presidents ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield. A few days after his meeting with Yoo, Mora confronted Haynes again. He told him that the draft working-group report was deeply flawed. It should be locked in a drawer, he said, and never let out to see the light of day again. He advised Haynes not to allow Rumsfeld to approve it. In the spring of 2003, Mora waited for the final working-group report to emerge, planning to file a strong dissent. But the report never appeared. Mora assumed that the draft based on Yoos ideas had not been finalized and that the suspension of the harsh techniques authorized by Rumsfeld was still in effect. In June, press accounts asserted that the U.S. was subjecting detainees to stress and duress techniques, including beatings and food deprivation. Senator Patrick Leahy, Democrat of Vermont, wrote to Secretary of State Condoleezza Rice, asking for a clear statement of the Administrations detainee policy. Haynes wrote a letter back to Leahy, which was subsequently released to the press, saying that the Pentagons policy was never to engage in torture, or cruel, inhumane, or degrading treatmentjust the sort of statement Mora had argued for. He wrote in his memo that he saw Hayness letter as the happy culmination of the long debates in the Pentagon. He sent an appreciative note to Haynes, saying that he was glad to be on his team.
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n 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 Guantnamo had happenedbut 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 reportthe draft based on Yoos opiniona year earlier, without the knowledge of Mora or any other internal legal critics. Rumsfelds signature gave it the weight of a military order. This was the first Id heard of it! Mora told me. Mora wrote that the Air Forces deputy general counsel, Daniel Ramos, told him that the final working-group report had been briefed to General Miller, the commander of Guantnamo, 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 hadnt 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 Guantnamo, 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 Moras knowledge, the Pentagon had pursued a secret detention policy. There was one version, enunciated in Hayness letter to Leahy, aimed at critics. And there was another, giving the operations officers legal indemnity to engage in cruel interrogations, and, when the Commanderin-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? Lederman said that he regarded Mora as heroic for raising crucial objections to the Administrations interrogation policy. But he added that Mora was unrealistic if he thought that, by offering legal warnings, he could persuade the leaders of the Administration to change its course. It appears that they werent asking to be warned, Lederman said. The senior Defense Department official defended as an act of necessary caution the decision not to inform Mora and other legal advisers of official policy. The interrogation techniques authorized in
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the signed report, he explained, were approved only for Guantnamo, and the Pentagon needed to prevent the practices from spreading to other battlefronts. If someone wants to criticize us for being too careful, I accept that criticism willingly, because we were doing what we could to limit the focus of that report . . . to Guantnamo, the official said. In fact, techniques that had been approved for use at Guantnamo were quickly transferred elsewhere. Four months after General Miller was briefed on the working-group report, the Pentagon sent him to Iraq, to advise officials there on interrogating Iraqi detainees. Miller, who arrived with a group of Guantnamo interrogators, known as the Tiger Team, later supervised all U.S.-run prisons in Iraq, including Abu Ghraib. And legal advisers to General Ricardo Sanchez, the senior U.S. commander in Iraq at the time, used the report as a reference in determining the limits of their interrogation authority, according to a Pentagon report on Abu Ghraib. A lawyer involved in the working group said that the Pentagons contention that it couldnt risk sharing the report with its authors doesnt make any sense. He explained, Wed seen everything already. The real reason for their exclusion, he speculated, was to avoid dissent. It would have put them in a bind, he said. And it would have created a paper trail. Meanwhile, Moras warnings about the legal underpinnings of the working-group report proved prophetic. In December, 2003, in an extraordinary repudiation of the Administrations own legal work, the Office of Legal Counsel quietly withdrew the Yoo opinion. The new head of the O.L.C., Jack Goldsmith, a conservative legal scholar who now teaches at Harvard Law School, told the Pentagon that it could no longer rely on the legal analysis. Among other problems, Goldsmith had found Yoos interpretation of the Presidents powers overly broad. In March, 2005, the Pentagon declared the working-group report a non-operational historical document. By that time, however, much of the most serious abuse at Guantnamo had already occurred. t the Pentagon in recent weeks, officials portrayed Moras memo as ancient history. They argued that they had acted quickly to rectify the wrongs he helped expose, by limiting the list of approved interrogation techniques. But while Mora believes that the use of cruel treatment in interrogation has diminished, he feels that the fight to establish clear, humane standards for the treatment of detainees is not over. He also worries that the Administrations views on interrogation have undermined American foreign policy, in part by threatening the international coalition needed to fight terrorism. Allied countries may not be able to support U.S. military actions, he said, if detainees are treated in a manner that most nations deemed illegal. Just a few months ago, Mora attended a meeting in Rumsfelds private conference room at the Pentagon, called by Gordon England, the Deputy Defense Secretary, to discuss a proposed new directive defining the militarys 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
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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 Waxmans 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 Americas 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 its a statute. It existswere not free to disregard it. Were bound by it. Its been adopted by the Congress. And were not the only interpreters of it. Other nations could have U.S. officials arrested. Not long afterward, Waxman was summoned to a meeting at the White House with David Addington. Waxman declined to comment on the exchange, but, according to the Times, Addington berated him for arguing that the Geneva conventions should set the standard for detainee treatment. The U.S. needed maximum flexibility, Addington said. Since then, efforts to clarify U.S. detention policy have languished. In December, Waxman left the Pentagon for the State Department. To date, no charges have been brought against U.S. personnel in Guantnamo. The senior Defense Department official I spoke to affirmed that, in the Pentagons view, Qahtanis interrogation was within the bounds. Elsewhere in the world, as Mora predicted, the controversy is growing. Last week, the United Nations Human Rights Commission called for the U.S. to shut down the detention center at Guantnamo, where,it said, some practices must be assessed as amounting to torture. The U.N. report, which the White House dismissed, described the confusion with regard to authorized and unauthorized interrogation techniques as particularly alarming. Mora recently started a new job, as the general counsel for Wal-Marts international operations. A few days after his going-away party, he reflected on his tenure at the Pentagon. He felt that he had witnessed both a moral and a legal tragedy. In Moras view, the Administrations legal response to September 11th was flawed from the start, triggering a series of subsequent errors that were all but impossible to correct. The determination that Geneva didnt apply was a legal and policy mistake, he told me. But very few lawyers could argue to the contrary once the decision had been made.
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Mora went on, It seemed odd to me that the actors werent 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 trialsor with the laws of war, or with the Geneva conventions. They cut many of the experts on those areas out. The State Department wasnt just on the back of the busit 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, its all so sad. To preserve flexibility, they were willing to throw away our values.
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Letter from Washington: The Hidden Power : The New Yorker
LETTER FROM WASHINGTON
THE HIDDEN POWER

The legal mind behind the White Houses war on terror.
by Jane Mayer
JULY 3, 2006
n December 18th, Colin Powell, the former Secretary of State, joined other prominent Washington figures at FedEx Field, the Redskins stadium, in a skybox belonging to the teams owner. During the game, between the Redskins and the Dallas Cowboys, Powell spoke of a recent report in the Times which revealed that President Bush, in his pursuit of terrorists, had secretly authorized the National Security Agency to eavesdrop on American citizens without first obtaining a warrant from the Foreign Intelligence Surveillance Court, as required by federal law. This requirement, which was instituted by Congress in 1978, after the Watergate scandal, was designed to protect civil liberties and curb abuses of executive power, such as Nixons secret monitoring of political opponents and the F.B.I.s eavesdropping on Martin Luther King, Jr. Nixon had claimed that as President he had the inherent authority to spy on people his Administration deemed enemies, such as the anti-Vietnam War activist Daniel Ellsberg. Both Nixon and the institution of the Presidency had paid a high price for this assumption. But, according to the Times, since 2002 the legal checks that Congress constructed to insure that no President would repeat Nixons actions had been secretly ignored. According to someone who knows Powell, his comment about the article was terse. Its Addington, he said. He doesnt care about the Constitution. Powell was referring to David S. Addington, Vice-President Cheneys chief of staff and his longtime principal legal adviser. Powells office says that he does not recall making the statement. But his former top aide, Lawrence Wilkerson, confirms that he and Powell shared this opinion of Addington. Most Americans, even those who follow politics closely, have probably never heard of
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Addington. But current and former Administration officials say that he has played a central role in shaping the Administrations legal strategy for the war on terror. Known as the New Paradigm, this strategy rests on a reading of the Constitution that few legal scholars sharenamely, that the President, as Commander-in-Chief, has the authority to disregard virtually all previously known legal boundaries, if national security demands it. Under this framework, statutes prohibiting torture, secret detention, and warrantless surveillance have been set aside. A former high-ranking Administration lawyer who worked extensively on national-security issues said that the Administrations legal positions were, to a remarkable degree, all Addington. Another lawyer, Richard L. Shiffrin, who until 2003 was the Pentagons deputy general counsel for intelligence, said that Addington was an unopposable force. The overarching intent of the New Paradigm, which was put in place after the attacks of September 11th, was to allow the Pentagon to bring terrorists to justice as swiftly as possible. Criminal courts and military courts, with their exacting standards of evidence and emphasis on protecting defendants rights, were deemed too cumbersome. Instead, the President authorized a system of detention and interrogation that operated outside the international standards for the treatment of prisoners of war established by the 1949 Geneva Conventions. Terror suspects would be tried in a system of military commissions, in Guantnamo Bay, Cuba, devised by the executive branch. The Administration designated these suspects not as criminals or as prisoners of war but as illegal enemy combatants, whose treatment would be ultimately decided by the President. By emphasizing interrogation over due process, the government intended to prempt future attacks before they materialized. In November, 2001, Cheney said of the military commissions, We think it guarantees that well have the kind of treatment of these individuals that we believe they deserve. Yet, almost five years later, this improvised military model, which Addington was instrumental in creating, has achieved very limited results. Not a single terror suspect has been tried before a military commission. Only ten of the more than seven hundred men who have been imprisoned at Guantnamo have been formally charged with any wrongdoing. Earlier this month, three detainees committed suicide in the camp. Germany and Denmark, along with the European Union and the United Nations Commission on Human Rights, have called for the prison to be closed, accusing the United States of violating internationally accepted standards for humane treatment and due process. The New Paradigm has also come under serious challenge from the judicial branch. Two years ago, in Rasul v. Bush, the Supreme Court ruled against the Administrations contention that the Guantnamo prisoners were beyond the reach of the U.S. court system and could not challenge their detention. And this week the Court is expected to deliver a decision in Hamdan v. Rumsfeld, a case that questions the legality of the military commissions. For years, Addington has carried a copy of the U.S. Constitution in his pocket; taped onto the back are photocopies of extra statutes that detail the legal procedures for Presidential succession in times of national emergency. Many constitutional experts, however, question his interpretation of the document, especially his views on Presidential power. Scott Horton, a professor at Columbia Law
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School, and the head of the New York Bar Associations International Law committee, said that Addington and a small group of Administration lawyers who share his views had attempted to overturn two centuries of jurisprudence defining the limits of the executive branch. Theyve made war a matter of dictatorial power. The historian Arthur Schlesinger, Jr., who defined Nixon as the extreme example of Presidential overreaching in his book The Imperial Presidency (1973), said he believes that Bush is more grandiose than Nixon. As for the Administrations legal defense of torture, which Addington played a central role in formulating, Schlesinger said, No position taken has done more damage to the American reputation in the worldever. Bruce Fein, a Republican legal activist, who voted for Bush in both Presidential elections, and who served as associate deputy attorney general in the Reagan Justice Department, said that Addington and other Presidential legal advisers had staked out powers that are a universe beyond any other Administration. This President has made claims that are really quite alarming. Hes said that there are no restraints on his ability, as he sees it, to collect intelligence, to open mail, to commit torture, and to use electronic surveillance. If you used the Presidents reasoning, you could shut down Congress for leaking too much. His war powers allow him to declare anyone an illegal combatant. All the worlds a battlefieldaccording to this view, he could kill someone in Lafayette Park if he wants! Its got the sense of Louis XIV: I am the State. Richard A. Epstein, a prominent libertarian law professor at the University of Chicago, said, The President doesnt have the power of a king, or even that of state governors. Hes subject to the laws of Congress! The Administrations lawyers are nuts on this issue. He warned of an impending constitutional crisis, because their talk of the inherent power of the Presidency seems to be saying that the courts cant stop them, and neither can Congress. The former high-ranking lawyer for the Administration, who worked closely with Addington, and who shares his political conservatism, said that, in the aftermath of September 11th, Addington was more like Cheneys agent than like a lawyer. A lawyer sometimes says no. He noted, Addington never said, There is a line you cant cross. Although the lawyer supported the President, he felt that his Administration had been led astray. George W. Bush has been damaged by incredibly bad legal advice, he said. avid Addington is a tall, bespectacled man of forty-nine, who has a thickening middle, a thatch of gray hair, and a trim gray beard, which gives him the look of a sea captain. He is extremely private; he keeps the door of his office locked at all times, colleagues say, because of the nationalsecurity documents in his files. He has left almost no public paper trail, and he does not speak to the press or allow photographs to be taken for news stories. (He declined repeated requests to be interviewed for this article.) In many ways, his influence in Washington defies conventional patterns. Addington doesnt serve the President directly. He has never run for elected office. Although he has been a government lawyer for his entire career, he has never worked in the Justice Department. He is a hawk on
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defense issues, but he has never served in the military. There are various plausible explanations for Addingtons power, including the force of his intellect and his personality, and his closeness to Cheney, whose political views he clearly shares. Addington has been an ally of Cheneys since the nineteen-eighties, and has been referred to as Cheneys Cheney, or, less charitably, as Cheneys hit man. Addingtons talent for bureaucratic infighting is such that some of his supporters tend to invoke, with admiration, metaphors involving knives. Juleanna Glover Weiss, Cheneys former press secretary, said, David is efficient, discreet, loyal, sublimely brilliant, and, as anyone who works with him knows, someone who, in a knife fight, you want covering your back. Bradford Berenson, a former White House lawyer, said, Hes powerful because people know he speaks for the Vice-President, and because hes an extremely smart, creative, and aggressive public official. Some engage in bureaucratic infighting using slaps. Some use knives. David falls into the latter category. You could make the argument that there are some costs. It introduces a little fear into the policymaking process. Views might be more candidly expressed without that fear. But David is like the Marines. No better friendno worse enemy. People who have sparred with him agree. Hes utterly ruthless, Lawrence Wilkerson said. A former top national-security lawyer said, He takes a political litmus test of everyone. If youre not sufficiently ideological, he would cut the ground out from under you. Another reason for Addingtons singular role after September 11th is that he offered legal certitude at a moment of great political and legal confusion, in an Administration in which neither the President, the Vice-President, the Secretary of Defense, the Secretary of State, nor the nationalsecurity adviser was a lawyer. (In the Clinton Administration, all these posts, except for the Vice-Presidency, were held by lawyers at some point.) Neither the Attorney General, John Ashcroft, nor the White House counsel, Alberto Gonzales, had anything like Addingtons familiarity with national-security law. Moreover, Ashcrofts relations with the White House were strained, and he was left out of the inner circle that decided the most radical legal strategies in the war on terror. Gonzales had more influence, because of his longtime ties to the President, but, as an Administration lawyer put it, he was an empty suit. He was weak. And he doesnt know shit about the Geneva Conventions. Participants in meetings in the White House counsels office, in the days immediately after September 11th, have described Gonzales sitting in a wingback chair, asking questions, while Addington sat directly across from him and held forth. Gonzales would call the meetings, the former high-ranking lawyer recalled. But Addington was always the force in the room. Bruce Fein said that the Bush legal team was strikingly unsophisticated. There is no one of legal stature, certainly no one like Bork, or Scalia, or Elliot Richardson, or Archibald Cox, he said. Its frightening. No one knows the Constitutioncertainly not Cheney. Conventional wisdom holds that September 11th changed everything, including the thinking of Cheney and Addington. Brent Scowcroft, the former national-security adviser, has said of Cheney that he barely recognizes the reasonable politician he knew in the past. But a close look at the twenty-year collaboration between Cheney and Addington suggests that in fact their ideology has not
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changed much. It seems clear that Addington was able to promote vast executive powers after September 11th in part because he and Cheney had been laying the political groundwork for years. This preceded 9/11, Fein, who has known both men professionally for decades, said. Im not saying that warrantless surveillance did. But the idea of reducing Congress to a cipher was already in play. It was Cheney and Addingtons political agenda. Addingtons admirers see him as a selfless patriot, a workaholic defender of a purist interpretation of Presidential powerthe necessary answer to threatening times. In 1983, Steve Berry, a Republican lawyer and lobbyist in Washington, hired Addington to work with him as the legislative counsel to the House Intelligence Committee; he has been a career patron and close friend ever since. He said, I know him well, and I know that if theres a threat he will do everything in his power, within the law, to protect the United States. Berry added that Addington is acutely aware of the legal tensions between liberty and security. We fought ourselves every day about it, he recalled. But, he said, they concluded that a strong national security and defense was the first priority, and that without a strong defense, theres not much expectation or hope of having other freedoms. He said that there is no better defender of the country than Addington: Ive got a lot of respect for the guy. Hes probably the foremost expert on intelligence and national-security law in the nation right now. Berry has a daughter who works in New York City, and he said that when he thinks of her safety he appreciates the efforts that Addington has made to strengthen the countrys security. He said, For Dave, protecting America isnt just a virtue. Its a personal mission. I feel safer just knowing hes where he is. Berry said of his friend, Hes methodical, conscientious, analytical, and logical. And hes as straight an arrow as they come. He noted that Addington refuses to let Berry treat him to a hamburger because it might raise issues of influence-buyinginstead, they split the check. Addington, he went on, has a dazzling ability to recall the past twenty-five years worth of intelligence and national-security legislation. For many years, he kept a vast collection of legal documents in a library in his modest brick-and-clapboard home, in Alexandria, Virginia. One evening several years ago, lightning struck a nearby power line and the house caught fire; much of the archive burned. The fire started at around nine in the evening, and Addington, typically, was still in his office. His wife, Cynthia, and their three daughters were fine, but the loss of his extraordinary collection of papers and political memorabilia, Berry said, was very hard for him to accept. All you get in this work is memorabilia. There is no cash. But hes the type of guy who gets psychic benefit from going to work every day, making a difference. Though few people doubt Addingtons knowledge of national-security law, even his admirers question his political instincts. The only time Ive seen him wrong is on his political judgment, a former colleague said. He has a tin ear for political issues. Sometimes the law says one thing, but you have to at least listen to the other side. He will cite case history, case after case. David doesnt see why you have to compromise. Even Berry offered a gentle criticism: His political skills can be overshadowed by his pursuit of what he feels is legally correct.
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ddington has been a hawk on national defense since he was a teen-ager. Leonard Napolitano, an engineer who was one of Addingtons close childhood friends, and whose political leanings are more like those of his sister, Janet Napolitano, the Democratic governor of Arizona, joked, I dont think that in high school David was a believer in the divine right of kings. But, he said, Addington was always conservative. The Addingtons were a traditional Catholic military family. They moved frequently; Davids father, Jerry, an electrical engineer in the Army, was assigned to a variety of posts, including Saudi Arabia and Washington, D.C., where he worked with the Joint Chiefs of Staff. As a teen-ager, Addington told a friend that he hoped to live in Washington himself when he grew up. Jerry Addington, a 1940 graduate of West Point who won a Bronze Star during the Second World War, also served in Korea and at the North American Air Defense Command, in Colorado; he reached the rank of brigadier general before he retired, in 1970, when David was thirteen. David attended public high school in Albuquerque, New Mexico, and his father began a second career, teaching middleschool math. His mother, Eleanore, was a housewife; the family lived in a ranch house in a middle-class subdivision. She still lives there; Jerry died in 1994. We are an extremely close family, one of Addingtons three older sisters, Linda, recalled recently. Discipline was very important for us, and faith was very important. It was about being ethicalthe right thing to do whether anyone else does it or not. I see that in Dave. She was reluctant to say more. Dave is most deliberate about his privacy, she added. Socially, Napolitano recalled, he and Addington were the brains, or nerds. Addington stood out for wearing black socks with shorts. He and his friends were not particularly athletic, and they liked to play poker all night on weekends, stopping early in the morning for breakfast. Their circle included some girls, until the boys found them too distracting to our interest in cards, Napolitano recalled. When he and Addington were in high school, Napolitano said, the Vietnam War was in its final stages, and there was a certain amount of Challenge authority and alcohol and drugs, but they werent issues in our group. Addingtons high-school history teacher, Irwin Hoffman, whom Napolitano recalled as wonderful, exacting, and a flaming liberal, said that Addington felt strongly that America should have stayed and won the Vietnam War, despite the fact that we were losing. Hoffman, who is retired, added, The boy seemed terribly, terribly bright. He wrote well, and he was very verbal, not at all reluctant to express his opinions. He was pleasant and quite handsome. He also had a very strong sarcastic streak. He was scornful of anyone who said anything that was nave, or less than bright. His sneers were almost palpable. Addington graduated in 1974, the year that Nixon resigned. In the aftermath of Watergate, liberal Democratic reformers imposed tighter restraints on the President and reined in the C.I.A., whose excesses were critiqued in congressional hearings, led by Senator Frank Church and Representative Otis Pike, that exposed details of assassination plots, coup attempts, mind-control experiments, and
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domestic spying. Congress passed a series of measures aimed at reinvigorating the system of checks and balances, including an expanded Freedom of Information Act and the Foreign Intelligence Surveillance Act, the law requiring judicial review before foreign suspects inside the country could be wiretapped. It also created the House and Senate Intelligence Committees, which oversee all covert C.I.A. activities. After high school, Addington pursued an ambition that he had had for years: to join the military. Rather than attending West Point, as his father had, he enrolled in the U.S. Naval Academy, in Annapolis. But he dropped out before the end of his freshman year. He went home and, according to Napolitano, worked in a Long John Silvers restaurant. The academy wasnt academically challenging enough for him, Napolitano said. Addington went to Georgetown University, graduating summa cum laude, in 1978, from the school of foreign service; he went on to earn honors at Duke Law School. After graduating, in 1981, he married Linda Werling, a graduate student in pharmacology. The marriage ended in divorce. His current wife, Cynthia, takes care of their three girls full-time. Soon after leaving Duke, Addington started his first job, in the general counsels office at the C.I.A. A former top agency lawyer who later worked with Addington said that Addington strongly opposed the reform movements that followed Vietnam and Watergate. Addington was too young to be fully affected by the Vietnam War, the lawyer said. He was shaped by the postwar, post-Watergate years instead. He thought the Presidency was too weakened. Hes a believer that in foreign policy the executive is meant to be quite powerful. These views were shared by Dick Cheney, who served as chief of staff in the Ford Administration. On a range of executive-power issues, Cheney thought that Presidents from Nixon onward yielded too quickly, Michael J. Malbin, a political scientist who has advised Cheney on the issue of executive power, said. Kenneth Adelman, who was a high-ranking Pentagon official under Ford, said that the fall of Saigon, in 1975, was very painful for Dick. He believed that Vietnam could have been savedmaybeif Congress hadnt cut off funding. He was against that kind of interference. Jane Harman, the ranking Democrat on the House Intelligence Committee, who has spent considerable time working with Cheney and Addington in recent years, believes that they are still fighting Watergate. Theyre focussed on restoring the Nixon Presidency, she said. Theyve persuaded themselves that, following Nixon, things went all wrong. She said that in meetings Addington is always courtly and pleasant. But when it comes to accommodating Congress his answer is always no. In a revealing interview that Cheney gave last December to reporters travelling with him to Oman, he explained, I do have the view that over the years there had been an erosion of Presidential power and authority. . . . A lot of the things around Watergate and Vietnam both, in the seventies, served to erode the authority I think the President needs. Further, Cheney explained, it was his express aim to restore the balance of power. The President needed to be able to act as
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Alexander Hamilton had described it in the Federalist Papers, with secrecy and despatch especially, Cheney said, in the day and age we live in . . . with the threats we face. He added, I believe in a strong, robust executive authority, and I think the world we live in demands it. At the C.I.A., where Addington spent two years, he focussed on curtailing the ability of Congress to interfere in intelligence gathering. He was a rookie, plenty bright, Frederick Hitz, another C.I.A. lawyer, who later became Inspector General, recalled. After the Church and Pike hearings, legislators came up with hundreds of pages of oversight recommendations, he said. Addington was very pro-agency. He was trying to figure out how to comply with government oversight without getting hog-tied. Addington viewed the public airings of the C.I.A.s covert activities as an absolute disaster, Berry recalled. We both felt that Congress did great harm by flinging open the doors to operational secrets. When Addington joined the C.I.A., it was directed by William J. Casey, who also regarded congressional constraints on the agency as impediments to be circumvented. His sentiment about congressional overseers was best captured during a hearing about covert actions in Central America, when he responded to tough questioning by muttering the word assholes. After Reagans election in 1980, the executive branch was dominated by conservative Republicans, while the House was governed by liberal Democrats. The two parties fought intensely over Central America; the Reagan Administration was determined to overthrow the leftist Sandinista government in Nicaragua. Using their constitutional authority over appropriations, the Democrats in Congress forbade the C.I.A. to spend federal funds to support the Contras, a rightist rebel group. But Caseys attitude, as Berry recalled it, was Were gonna fund these freedom fighters whether Congress wants us to or not. Berry, then the staff director for the Republicans on the House Intelligence Committee, asked Casey for help in fighting the Democrats. Soon afterward, Addington joined Berry on Capitol Hill. When the Iran-Contra scandal broke, in 1986, it exposed White House arms deals and foreign fund-raising designed to help the anti-Sandinista forces in Nicaragua. Members of Congress were furious. Summoned to Capitol Hill, Casey lied, denying that funds for the Contras had been solicited from any foreign governments, although he knew that the Saudis, among others, had agreed to give millions of dollars to the Contras, at the request of the White House. Even within the Reagan Administration, the foreign funding was controversial. Secretary of State George Shultz had warned Reagan that he might be committing an impeachable offense. But, under Caseys guidance, the White House went ahead with the plan; Shultz, having expressed misgivings, was not told. It was a bureaucratic tactic that Addington reprised after September 11th, when Powell was left out of key deliberations about the treatment of detainees. Lawrence Wilkerson, Powells aide, said that he was aware of Addingtons general strategy: We had heard that, behind our backs, he was saying that Powell was soft, but easy to get around. The Iran-Contra scandal substantially weakened Reagans popularity and, eventually, seven people were convicted of seventeen felonies. Cheney, who was then a Republican congressman from Wyoming, worried that the scandal would further undercut Presidential authority. In late 1986, he
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became the ranking Republican on a House select committee that was investigating the scandal, and he commissioned a report on Reagans support of the Contras. Addington, who had become an expert in intelligence law, contributed legal research. The scholarly-sounding but politically outlandish Minority Report, released in 1987, argued that Congressnot the Presidenthad overstepped its authority, by encroaching on the Presidents foreign-policy powers. The President, the report said, had been driven by a legitimate frustration with abuses of power and irresolution by the legislative branch. The Minority Report sanctioned the Presidents actions to a surprising degree, considering the number of criminal charges that resulted from the scandal. The report also defended the legality of ignoring congressional intelligence oversight, arguing that the President has the Constitutional and statutory authority to withhold notifying Congress of covert actions under rare conditions. And it condemned legislative hostage taking, noting that Congress must realize . . . that the power of the purse does not make it supreme in matters of war. In his December interview with reporters, Cheney proudly cited this document. If you want reference to an obscure text, go look at the minority views that were filed in the Iran-Contra committee, the Iran-Contra report, in about 1987, he said. Part of the argument was whether the President had the authority to do what was done in the Reagan years. Addington and Cheney became a formidable team, but it was soon clear that Addington would not join Cheney as a politician. Adelman recalled Addingtons personality as dour, adding that, unlike with Dick, I never saw much of a sense of humor. Cheney can be witty and funny. David is sober. I didnt see him at social events much. But, he added, Dick wasnt looking for friends at work. He was looking for performance. And David delivers. Hes efficient and dedicated. Hes a doer. He went on, Cheneys not a lawyer, so he would defer to David on the law. In 1989, President George H. W. Bush appointed Cheney Secretary of Defense. Cheney hired Addington first as his special assistant and, later, as the Pentagons general counsel. At the Pentagon, Addington became widely known as Cheneys gatekeepera stickler for process who controlled the flow of documents to his boss. Using a red felt-tipped pen, he covered his colleagues memos with comments before returning them for rewrites. His editing invariably made arguments sharper, smarter, and more firm in their defense of Cheneys executive powers, a former military official who worked with him said. At the Pentagon, Addington took a particular interest in the covert actions of the Special Forces. A former colleague recalled that, after attending a demonstration by Special Forces officers, he mocked the C.I.A., which was constrained by oversight laws. This is how real covert operations are done, he said. (After September 11th, the Pentagon greatly expanded its covert intelligence operations; these programs have less congressional oversight than those of the C.I.A.) Cheney, throughout his tenure as Defense Secretary, shared with Addington a pessimistic view of the Soviet Union. Both remained skeptical of Gorbachev long after the State Department, the national-security adviser, and the C.I.A. had concluded that he was a reformer. They were always, like, Whoa beware the Bear! Wilkerson recalled. They immersed themselves in continuity of government
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exercisesstudying with unusual intensity how the government might survive a nuclear attack. According to Rise of the Vulcans, a history of the period by James Mann, Cheney, more than once, spent the night in an underground bunker. A decade later, when hijacked planes slammed into the Twin Towers and the Pentagon, Addington, perhaps more than anyone else in the U.S. government, was ready to act. During the Clinton Presidency, he had worked as a lawyer for various business interests, such as the American Trucking Associations, and in 1994 he had led an exploratory Presidential campaign for Cheney, who decided against running. Once Cheney became Vice-President, Addington helped oversee the transition, setting up the most powerful Vice-Presidency in Americas history. Addingtons high-school friend Leonard Napolitano said Addington told him that he and Cheney were merging the Vice-Presidents office with the Presidents into a single Executive Office, instead of having two different camps. Napolitano added, David said that Cheney saw the Vice-President as the executive and implementer of the President. Addington created a system to insure that virtually all important documents relating to national-security matters were seen by the Vice-Presidents office. The former high-ranking Administration lawyer said that Addington regularly attended White House legal meetings with the C.I.A. and the National Security Agency. He received copies of all National Security Council documents, including internal memos from the staff. And, as a former top official in the Defense Department, he exerted influence over the legal office at the Pentagon, helping his protg William J. Haynes secure the position of general counsel. A former national-security lawyer, speaking of the Pentagons legal office, said, Its obvious that Addington runs the whole operation. n the days after September 11th, a half-dozen White House lawyers had heated discussions about how to frame the Administrations legal response to the attacks. Bradford Berenson, one of the participants, recalled how raw feelings were at the time: There were thousands of bereaved American families. Everyone was expecting additional attacks. The only planes in the air were military. At a moment like that, theres an intense focus on responsibility and accountability. Preventing another attack should always be within the law. But if you have to err on the side of being too aggressive or not aggressive enough, youd err by being too aggressive. Berry said that Addington felt this keenly. Ive talked to David about this a little. Psychologically, its really taxing to read every day not about one or two but about a dozen, or two dozen, legitimate reports about efforts to take out U.S. citizens. . . . Theres a little bit of a bunker mentality that set in among some of the national-security-policy officials after 9/11. Almost immediately, other Administration lawyers noticed that Addington dominated the internal debates. His assumption, shared by other hard-line lawyers in the White House counsels office and in the Justice Departments Office of Legal Counsel, was that the criminal-justice system was insufficient to handle the threat from terrorism. The matter was settled without debate, Berenson recalled: There was a consensus that we had to move from retribution and punishment to premption and prevention. Only a warfare model allows that approach.
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Richard Shiffrin, the former Pentagon lawyer, said that during a tense White House meeting held in the Situation Room just a few days after September 11th all of us felt under a great deal of pressure to be willing to consider even the most extraordinary proposals. The C.I.A., the N.S.C., the State Department, the Pentagon, and the Justice Department all had people there. Addington was particularly strident. Hed sit, listen, and then say, No, thats not right. He was particularly doctrinaire and ideological. He didnt recognize the wisdom of the other lawyers. He was always right. He didnt listen. He knew the answers. The details of the discussion are classified, Shiffrin said, but he left with the impression that Addington doesnt believe there should be co-equal branches. Another participant recalled, If you favored international law, you were in danger of being called soft on terrorism by Addington. He added that Addingtons manner in meetings was very insistent and very loud. Yet another participant said that, whenever he cautioned against executive-branch overreaching, Addington would respond brusquely, There you go again, giving away the Presidents power. Some of the protests from Democrats about the Administrations legal arguments and some of the declarations of high principle from Republicans are mere partisan gestures. Both sides have changed their views about the need for a strong President, depending on whether they were in power. Its a matter of degree, the liberal Princeton historian Sean Wilentz said. War always expands the powers of the Presidency. And Presidents always overreach. Lincoln infamously suspended habeas-corpus rights during the Civil War, locking up thousands of Confederate sympathizers without due process, and Franklin D. Roosevelt interned more than a hundred thousand innocent Japanese-Americans. Someone said that this Administration is monarchical, Wilentz added. Thats just rhetoric. Were not a dictatorship. At the same time, this White House has assumed powers for itself that no previous Administration has done. Bushs defenders frequently cite the example of Lincoln as a justification for placing national security above the rule of law. But Schlesinger, in his book War and the American Presidency (2004), points out that Lincoln never claimed an inherent and routine right to do what [he] did. The Bush White House, he told me, has seized on these historical aberrations and turned them into a doctrine of Presidential prerogative. On September 25th, the Office of Legal Counsel issued a memo declaring that the President had inherent constitutional authority to take whatever military action he deemed necessary, not just in response to the September 11th attacks but also in the prevention of any future attacks from terrorist groups, whether they were linked to Al Qaeda or not. The memos broad definition of the enemy went beyond that of Congress, which, on September 14th, had passed legislation authorizing the President to use military force against nations, organizations, or persons directly linked to the attacks. The memo was written by John Yoo, a lawyer in the Office of Legal Counsel who worked closely with Addington, and said, in part, The power of the President is at its zenith under the Constitution when the President is directing military operations of the armed forces, because the power of the Commander-in-Chief is assigned solely to the President. The memo acknowledged
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that Article I of the Constitution gives Congress the power to declare war, but argued that it was a misreading to assume that the article gives Congress the lead role in making war. Instead, the memo said, it is beyond question that the President has the plenary Constitutional power to take such military actions as he deems necessary and appropriate to respond to the terrorist attacks upon the United States on September 11, 2001. It concluded, These decisions, under our Constitution, are for the President alone to make. Another memo sanctioned torture when the President deems it necessary; yet another claimed that there were virtually no valid legal prohibitions against the inhumane treatment of foreign prisoners held by the C.I.A. outside the U.S. Most of these decisions, according to many Administration officials who were involved in the process, were made in secrecy, and the customary interagency debate and vetting procedures were sidestepped. Addington either drafted the memos himself or advised those who were drafting them. Addingtons fingerprints were all over these policies, said Wilkerson, who, as Powells top aide, later assembled for the Secretary a dossier of internal memos detailing the decision-making process. On November 13, 2001, an executive order setting up the military commissions was issued under Bushs signature. The decision stunned Powell; the national-security adviser, Condoleezza Rice; the highest-ranking lawyer at the C.I.A.; and many judge advocate generals, or JAGs, the top lawyers in the military services. None of them had been consulted. Michael Chertoff, the head of the Justice Departments criminal division, who had argued for trying terror suspects in the U.S. courts, was also bypassed. And the order surprised John Bellinger III, the National Security Council legal adviser and deputy White House counsel, who had been formally asked to help create a legal method for trying foreign terror suspects. According to multiple sources, Addington secretly usurped the process. He and a few hand-picked associates, including Bradford Berenson and Timothy Flanigan, a lawyer in the White House counsels office, wrote the executive order creating the commissions. Moreover, Addington did not show drafts of the order to Powell or Rice, who, the senior Administration lawyer said, was incensed when she learned about her exclusion. The order proclaimed a state of extraordinary emergency, and announced that the rules for the military commissions would be dictated by the Secretary of Defense, without review by Congress or the courts. The commissions could try any foreign person the President or his representatives deemed to have engaged in or abetted or conspired to commit terrorism, without offering the right to seek an appeal from anyone but the President or the Secretary of Defense. Detainees would be treated humanely, and would be given full and fair trials, the order said. Yet the order continued that it is not practicable to apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts. The death penalty, for example, could be imposed even if there was a split verdict. Moreover, in December, 2001, the Department of Defense circulated internal memos suggesting that, in the commission system, defendants would have only limited rights to confront their accusers, see all the evidence against them, or be present during their trials. There would be no right to remain silent, and hearsay
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evidence would be admissible, as would evidence obtained through physical coercion. Guilt did not need to be proved beyond a reasonable doubt. The order firmly established that terrorism would henceforth be approached on a war footing, endowing the President with enhanced powers. The precedent for the order was an arcane 1942 case, ex parte Quirin, in which Franklin Roosevelt created a military commission to try eight Nazi saboteurs who had infiltrated the United States via submarines. The Supreme Court upheld the case, 80, but even the conservative Justice Antonin Scalia has called it not this Courts finest hour. Roosevelt was later criticized for creating a sham process. Moreover, while he used military commissions to try a handful of suspects who had already admitted their guilt, the Bush White House was proposing expanding the process to cover thousands of enemy combatants. It was also ignoring the Uniform Code of Military Justice, which, having codified procedures for courts-martial in 1951, had rendered Quirin out of date. Berenson said, The legal foundation was very strong. F.D.R.s order establishing military commissions had been upheld by the Supreme Court. This was almost identical. What we underestimated was the extent to which the culture had shifted beneath us since World War Two. Concerns about civil liberties and human rights, and anger over Vietnam and Watergate, he said, had turned public opinion against a strong executive branch: But Addington thought military commissions had to be a tool at the Presidents disposal. Rear Admiral Donald Guter, who was the Navys chief JAG until June, 2002, said that he and the other JAGs, who were experts in the laws of war, tried unsuccessfully to amend parts of the militarycommission plan when they learned of it, days before the order was formally signed by the President. But we were marginalized, he said. We were warning them that we had this long tradition of military justice, and we didnt want to tarnish it. The treatment of detainees was a huge issue. They didnt want to hear it. In a 2004 report in the Times, Guter said that when he and the other JAGs told Haynes that they needed more information, Haynes replied, No, you dont. (Hayness office offered no comment.) At the Defense Department, Shiffrin, the deputy general counsel for intelligence, and a career lawyer rather than a political appointee, was taken aback when Haynes showed him the order. Earlier in Shiffrins career, at the Justice Department, his office had been in the same room where the Nazi defendants were tried, and he had become interested in the case, which he said he regarded as one of the worst Supreme Court cases ever. He recalled informing Haynes that he was skeptical of the Administrations invocation of Quirin. Gee, this is problematic, Shiffrin told him. Marine Major Dan Mori, the uniformed lawyer who has been assigned to defend David Hicks, one of the ten terror suspects in Guantnamo who have been charged, said of the commissions, It was a political stunt. The Administration clearly didnt know anything about military law or the laws of war. I think they were clueless that there even was a U.C.M.J. and a Manual for Courts-Martial! The fundamental problem is that the rules were constructed by people with a vested interest in conviction. Mori said that the charges against the detainees reflected a profound legal confusion. A military
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commission can try only violations of the laws of war, he said. But the Administrations lawyers didnt understand this. Under federal criminal statutes, for example, conspiring to commit terrorist acts is a crime. But, as the Nuremburg trials that followed the Second World War established, under the laws of war it is not, since all soldiers could be charged with conspiring to fight for their side. Yet, Mori said, a charge of conspiracy is the only thing there is in many cases at Guantnamo guilt by association. So youve got this big problem. He added, I hope that nobody confuses military justice with these military commissions. This is a political process, set up by the civilian leadership. Its inept, incompetent, and improper. Under attack from defense lawyers like Mori, the military commissions have been tied up in the courts almost since the order was issued. Bellinger and others fought to make the commissions fairer, so that they could withstand court challenges, and the Pentagon gradually softened its rules. But Administration lawyers involved in the process said that Addington resisted at every turn. He insisted, for instance, on maintaining the admissibility of statements obtained through coercion, or even torture. In meetings, he argued that officials in charge of the military commissions should be given maximum flexibility to decide whether to include such evidence. Torture isnt important to Addington as a scientific matter, good or bad, or whether it works or not, the Administration lawyer, who is familiar with these debates, said. Its more about his philosophy of Presidential power. He thinks that if the President wants torture he should get torture. He always argued for maximum flexibility. Last month, Addington lost this internal battle. The Administration rescinded the provision allowing coerced testimony, after even the military officials overseeing the commissions supported the reform. According to a senior Administration legal adviser who participated in discussions about the commissions, Addington remained opposed to the change. He wanted no changes, the lawyer said. He said the rules were good, right from the start. Addington accused officials who were trying to reform the rules of giving away the Presidents prerogatives. President Bush has blamed the legal challenges for the delays in prosecuting Guantnamo detainees. But many lawyers, even some inside the Administration, believe that the challenges were inevitable, considering the dubious constitutionality of the commissions. The Supreme Courts ruling in the Hamdan case is expected to establish whether the commissions meet basic standards of due process. The Administration lawyer isnt sanguine about the outcome. It shows again that Addington overreached, he said. eanwhile, Addington has fought tirelessly to stem reform of other controversial aspects of the New Paradigm, such as the detention and interrogation of terror suspects. Last year, he and Cheney led an unsuccessful campaign to defeat an amendment, proposed by Senator John McCain, to ban the abusive treatment of detainees held by the military or the C.I.A. Government officials who have worked closely with Addington say he insists that legal flexibility is necessary, because of the iniquity of the enemy; moreover, he does not believe that the legal positions taken by the Bush
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Administration in the war on terror have damaged the countrys international reputation. Hes a very smart guy, but he gives no credibility to those who say these policies are hurting us around the world, the senior Administration legal adviser said. His feeling is that there are no costs. Hell say people are just whining. He thinks most of them would be against us no matter what. In Addingtons view, critics of the Administrations aggressive legal policies are just political enemies of the President. Yet, from the start, some of the sharpest critics of detainee-treatment policies have been military and law-enforcement officials inside the Bush Administration; people close to it, like McCain; and our foreign allies. Just a few months after the Guantnamo detention centers were established, members of the Administration began receiving reports that questioned whether all the prisoners there were really, as Secretary of Defense Donald Rumsfeld had labelled them, the worst of the worst. Guter said that the Pentagon had originally planned to screen the suspects individually on the battlefields in Afghanistan; such Article 5 hearings are a provision of the Geneva Conventions. But the White House cancelled the hearings, which had been standard protocol during the previous fifty years, including in the first Gulf War. In a January 25, 2002, legal memorandum, Administration lawyers dismissed the Geneva Conventions as obsolete, quaint, and irrelevant to the war on terror. The memo was signed by Gonzales, but the Administration lawyer said he believed that Addington and Flanigan were behind it. The memo argued that all Taliban and Al Qaeda detainees were illegal enemy combatants, which eliminated any argument regarding the need for case-by-case determination of P.O.W. status. Critics claim that the lack of a careful screening process led some innocent detainees to be imprisoned. Article 5 hearings would have cost them nothing, the Administration lawyer, who was involved in the process, said. They just wanted to make a point on executive powerthat the President can designate them all enemy combatants if he wants to. Guter, the Navy JAG, said that, before long, he and other military experts began to wonder whether the reason they werent getting much useful intelligence from Guantnamo was that, as he puts it, it wasnt there. Guter, who was in the Pentagon on September 11th, said, I dont have a sympathetic bone in my body for the terrorists. But I just wanted to make sure we were getting the right peoplethe real terrorists. And I wanted to make sure we were doing it in a way consistent with our values. While the JAGs questions about the treatment of detainees went largely unheeded, he said, the C.I.A. was simultaneously raising similar concerns. In the summer of 2002, the agency had sent an Arabic-speaking analyst to Guantnamo to find out why more intelligence wasnt being collected, and, after interviewing several dozen prisoners, he had come back with bad news: more than half the detainees, he believed, didnt belong there. He wrote a devastating classified report, which reached General John Gordon, the deputy national-security adviser for combatting terrorism. In a series of meetings at the White House, Gordon, Bellinger, and other officials warned Addington and Gonzales that potentially innocent people had been locked up in Guantnamo and would be indefinitely. This
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is a violation of basic notions of American fairness, Gordon and Bellinger argued. Isnt that what were about as a country? Addingtons response, sources familiar with the meetings said, was These are enemy combatants. Please use that term. Theyve all been through a screening process. We dont have anything to talk about. A former Administration official said of Addingtons response, It seemed illogical. How could you deny the possibility that one or more people were locked up who shouldnt be? There were old people, sick peoplewhy do we want to keep them? At the meeting, Gordon and Bellinger argued, The American public understands that wars are confusing and exceptional things happen. But the American public will expect some due process. Addington and Gonzales dismissed this concern. The former Administration official recalled that Addington was the dominant voice. It was a non-debate, in his view. The confrontation made clear, though, that Addington had been informed early that there were problems at Guantnamo. There wasnt a lack of knowledge or understanding, the former official said. Addington has proved deft at outmaneuvering his critics. Documents embarrassing to Addingtons opponents have been leaked to the press, if not necessarily by him. A top-secret N.S.C. memo describing Powells request to reconsider the suspension of the Geneva Conventions appeared in the Washington Times the day after it was circulated to the Secretary of Defense, the Attorney General, and the Vice-President; the article cited unnamed sources who accused Powell of bowing to pressure from the political left. The Administration lawyer said, The way Addington works, he controls the flow of information very tightly. Addington chastised a Justice Department official who showed a legal opinion on the treatment of detainees to the State Department. He repeatedly directed Gonzales, the White House counsel, to keep Bellinger, the N.S.C. lawyer, out of meetings about national-security issues. Lip-lock is the word Addingtons old Pentagon colleague Sean OKeefe, now the chancellor of Louisiana State University, used to describe his discretion. Hes like Cheney, OKeefe said. You cant get anything out of him with a crowbar. The Administration lawyer said, Hes a bully, pure and simple. Several talented top lawyers who challenged Addington on important legal matters concerning the war on terror, including Patrick Philbin, James Comey, and Jack Goldsmith, left the Administration under stressful circumstances. Other reform-minded government lawyers who clashed with Addington, including Bellinger and Matthew Waxman, both of whom were at the N.S.C. during Bushs first term, have moved to the State Department. Waxman, a young lawyer who headed the Pentagons office of detainee affairs, departed soon after he had a major confrontation with Addington over the issue of clarifying military rules for the treatment of prisoners. Waxman believed that international standards for the humane treatment of detainees should be followed, and argued for reforms in the Army Field Manual. He hoped to reinstate the basic standards that are specified in the Geneva Conventions. This meant the prohibition of torture, overt acts of violence, and outrages on personal dignity, in particular humiliating and degrading treatment. Although the Vice-Presidents office is not part of the military chain of command, last September Addington summoned Waxman to his office and berated him. Waxman
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declined to comment on the incident, but a former colleague in the Pentagon, in whom Waxman confided, said that Addington accused Waxman of wanting to fight the war on terror his own way, rather than the Presidents way. The Army Field Manual still hasnt been revised, and, according to those involved, Addington and his protg Haynes remain the major obstacles. ast fall, Richard Shiffrin, the Pentagon lawyer who was left out of the Administrations initial discussions of the military commissions, learned from the Times about the Administrations decision to sanction warrantless domestic electronic surveillance by the National Security Agency. This was remarkable, because Shiffrin was the Pentagon lawyer in charge of supervising the N.S.A.s legal advisers. It was exceptional that I didnt know about itextraordinary, Shiffrin said. In the prior Administration, on anything involving N.S.A. legal issues Id have been made aware. And I should have been in this one. Shortly after September 11th, Addington and Cheney, without alerting Shiffrin, held meetings with top N.S.A. lawyers in the Vice-Presidents office and told them that the President, as Commander-in-Chief, had the authority to override the FISA statutes and not seek warrants from the special court. According to the Times, Addington and Cheney pushed the N.S.A. to engage in practices that the agency thought were illegal, such as the warrantless wiretapping of American suspects making domestic calls. General Michael Hayden, the former head of the N.S.A., who was recently confirmed as director of the C.I.A., has denied being pressured. Shiffrin, however, doubted that the N.S.A. lawyers were expert enough in Article II of the Constitution, which defines the Presidents powers, to argue back. He described the Administrations legal arguments on wiretapping as close calls. Others are more critical. Fourteen prominent constitutional scholars, representing a range of political views, recently wrote an open letter to Congress, claiming that the N.S.A. surveillance program appears on its face to violate existing law. The scholars noted that Bush had made no effort to amend the FISA law to suit national-security needshe simply ignored it. The Republican legal activist Bruce Fein said, What makes this so sinister is that the members of this Administration have unchecked power. They dont care if the wiretapping is legal or not. But the former high-ranking Administration lawyer suggested that the situation is more serious than an intentional infraction of the law. Its not that they think theyre skirting the law, he said. They think that this is the law. Fein suggested that the only way Congress will be able to reassert its power is by cutting off funds to the executive branch for programs that it thinks are illegal. But this approach has been tried, and here, too, Addington has had the last word. John Murtha, the ranking Democrat on the House Appropriations Subcommittee on Defense, put a provision in the Pentagons appropriations bills for 2005 and 2006 forbidding the use of federal funds for any intelligence-gathering that violates the Fourth Amendment, which protects the privacy of American citizens. The White House, however, took exception to Congresss effort to cut off funds. When President Bush signed the appropriations
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bills into law, he appended signing statements asserting that the Commander-in-Chief had the right to collect intelligence in any way he deemed necessary. The signing statement for the 2005 budget, for instance, noted that the executive branch would construe the spending limit only in a manner consistent with the Presidents constitutional authority as Commander-in-Chief, including for the conduct of intelligence operations. According to the Boston Globe, Addington has been the leading architect of these signing statements, which have been added to more than seven hundred and fifty laws. He reportedly scrutinizes every bill before President Bush signs it, searching for any language that might impinge on Presidential power. These wars of words are yet another battlefront between Addington and Congress, and some constitutional scholars find them troubling. Few of the signing statements were noticed until one of them was slipped into Bushs signing of the McCain amendment. The language was legal boilerplate, reserving the right to construe the legislation only as it was consistent with the Constitution. But, considering that Cheneys office had waged, and lost, a public fight to defeat the McCain amendment democraticallythe vote in the Senate was 909the signing statement seemed sneaky and subversive. Earlier this month, the American Bar Association voted to investigate whether President Bush had exceeded his constitutional authority by reserving the right to ignore portions of laws that he has signed. Richard Epstein, the University of Chicago law professor, said, Whats frightening to me is that this Administration is always willing to push the conventions to the limitsand beyond. With his signing statements, I think the President just goes too far. If you sign these things with a caveat, do the inferior officers follow the law or the caveat? Bruce Fein argues that Addingtons signing statements are unconstitutional as a strategy, because the Founding Fathers wanted Presidents to veto legislation openly if they thought the bills were unconstitutional. Bush has not vetoed a single bill since taking office. Its part of the balancing process, Fein said. Its about accountability. If you veto something, everyone knows where you stand. But this President wants to do it sotto voce. He wants to give the image that hes accommodating on torture, and then reserves the right to torture anyway. David Addington is a satisfactory lawyer, Fein said, but a less than satisfactory student of American history, which, for a public servant of his influence, matters more. If you read the Federalist Papers, you can see how rich in history they are, he said. The Founders really understood the history of what people did with power, going back to Greek and Roman and Biblical times. Our political heritage is to be skeptical of executive power, because, in particular, there was skepticism of King George III. But Cheney and Addington are not students of history. If they were, theyd know that the Founding Fathers would be shocked by what theyve done.
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A Reporter at Large: The Black Sites : The New Yorker
http://www.newyorker.com/reporting/2007/08/13/070813fa_fact_mayer?...
A REPORTER AT LARGE
THE BLACK SITES

A rare look inside the C.I.A.s secret interrogation program.
by Jane Mayer
AUGUST 13, 2007
n March, Mariane Pearl, the widow of the murdered Wall Street Journal reporter Daniel Pearl, received a phone call from Alberto Gonzales, the Attorney General. At the time, Gonzaless role in the controversial dismissal of eight United States Attorneys had just been exposed, and the story was becoming a scandal in Washington. Gonzales informed Pearl that the Justice Department was about to announce some good news: a terrorist in U.S. custodyKhalid Sheikh Mohammed, the Al Qaeda leader who was the primary architect of the September 11th attackshad confessed to killing her husband. (Pearl was abducted and beheaded five and a half years ago in Pakistan, by unidentified Islamic militants.) The Administration planned to release a transcript in which Mohammed boasted, I decapitated with my blessed right In the war on terror, one historian says, the C.I.A. didnt just bring back the old hand the head of the American Jew Daniel Pearl in the psychological techniquesthey perfected city of Karachi, Pakistan. For those who would like to them. confirm, there are pictures of me on the Internet holding his head. Pearl was taken aback. In 2003, she had received a call from Condoleezza Rice, who was then President Bushs national-security adviser, informing her of the same news. But Rices revelation had been secret. Gonzaless announcement seemed like a publicity stunt. Pearl asked him if he had proof that Mohammeds confession was truthful; Gonzales claimed to have corroborating evidence but wouldnt share it. Its not enough for officials to call me and say they believe it, Pearl said. You need evidence. (Gonzales did not respond to requests for comment.) The circumstances surrounding the confession of Mohammed, whom law-enforcement officials refer to as K.S.M., were perplexing. He had no lawyer. After his capture in Pakistan, in March of 2003, the Central Intelligence Agency had detained him in undisclosed locations for more than two
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years; last fall, he was transferred to military custody in Guantnamo Bay, Cuba. There were no named witnesses to his initial confession, and no solid information about what form of interrogation might have prodded him to talk, although reports had been published, in the Times and elsewhere, suggesting that C.I.A. officers had tortured him. At a hearing held at Guantnamo, Mohammed said that his testimony was freely given, but he also indicated that he had been abused by the C.I.A. (The Pentagon had classified as top secret a statement he had written detailing the alleged mistreatment.) And although Mohammed said that there were photographs confirming his guilt, U.S. authorities had found none. Instead, they had a copy of the video that had been released on the Internet, which showed the killers arms but offered no other clues to his identity. Further confusing matters, a Pakistani named Ahmed Omar Saeed Sheikh had already been convicted of the abduction and murder, in 2002. A British-educated terrorist who had a history of staging kidnappings, he had been sentenced to death in Pakistan for the crime. But the Pakistani government, not known for its leniency, had stayed his execution. Indeed, hearings on the matter had been delayed a remarkable number of timesat least thirtypossibly because of his reported ties to the Pakistani intelligence service, which may have helped free him after he was imprisoned for terrorist activities in India. Mohammeds confession would delay the execution further, since, under Pakistani law, any new evidence is grounds for appeal. A surprising number of people close to the case are dubious of Mohammeds confession. A longtime friend of Pearls, the former Journal reporter Asra Nomani, said, The release of the confession came right in the midst of the U.S. Attorney scandal. There was a drumbeat for Gonzaless resignation. It seemed like a calculated strategy to change the subject. Why now? Theyd had the confession for years. Mariane and Daniel Pearl were staying in Nomanis Karachi house at the time of his murder, and Nomani has followed the case meticulously; this fall, she plans to teach a course on the topic at Georgetown University. She said, I dont think this confession resolves the case. You cant have justice from one persons confession, especially under such unusual circumstances. To me, its not convincing. She added, I called all the investigators. They werent just skepticalthey didnt believe it. Special Agent Randall Bennett, the head of security for the U.S. consulate in Karachi when Pearl was killedand whose lead role investigating the murder was featured in the recent film A Mighty Heartsaid that he has interviewed all the convicted accomplices who are now in custody in Pakistan, and that none of them named Mohammed as playing a role. K.S.M.s name never came up, he said. Robert Baer, a former C.I.A. officer, said, My old colleagues say with one-hundredper-cent certainty that it was not K.S.M. who killed Pearl. A government official involved in the case said, The fear is that K.S.M. is covering up for others, and that these people will be released. And Judea Pearl, Daniels father, said, Something is fishy. There are a lot of unanswered questions. K.S.M. can say he killed Jesushe has nothing to lose. Mariane Pearl, who is relying on the Bush Administration to bring justice in her husbands case, spoke carefully about the investigation. You need a procedure that will get the truth, she said. An
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intelligence agency is not supposed to be above the law. ohammeds interrogation was part of a secret C.I.A. program, initiated after September 11th, in which terrorist suspects such as Mohammed were detained in black sitessecret prisons outside the United Statesand subjected to unusually harsh treatment. The program was effectively suspended last fall, when President Bush announced that he was emptying the C.I.A.s prisons and transferring the detainees to military custody in Guantnamo. This move followed a Supreme Court ruling, Hamdan v. Rumsfeld, which found that all detaineesincluding those held by the C.I.A.had to be treated in a manner consistent with the Geneva Conventions. These treaties, adopted in 1949, bar cruel treatment, degradation, and torture. In late July, the White House issued an executive order promising that the C.I.A. would adjust its methods in order to meet the Geneva standards. At the same time, Bushs order pointedly did not disavow the use of enhanced interrogation techniques that would likely be found illegal if used by officials inside the United States. The executive order means that the agency can once again hold foreign terror suspects indefinitely, and without charges, in black sites, without notifying their families or local authorities, or offering access to legal counsel. The C.I.A.s director, General Michael Hayden, has said that the program, which is designed to extract intelligence from suspects quickly, is an irreplaceable tool for combatting terrorism. And President Bush has said that this program has given us information that has saved innocent lives, by helping us stop new attacks. He claims that it has contributed to the disruption of at least ten serious Al Qaeda plots since September 11th, three of them inside the United States. According to the Bush Administration, Mohammed divulged information of tremendous value during his detention. He is said to have helped point the way to the capture of Hambali, the Indonesian terrorist responsible for the 2002 bombings of night clubs in Bali. He also provided information on an Al Qaeda leader in England. Michael Sheehan, a former counterterrorism official at the State Department, said, K.S.M. is the poster boy for using tough but legal tactics. Hes the reason these techniques exist. You can save lives with the kind of information he could give up. Yet Mohammeds confessions may also have muddled some key investigations. Perhaps under duress, he claimed involvement in thirty-one criminal plotsan improbable number, even for a high-level terrorist. Critics say that Mohammeds case illustrates the cost of the C.I.A.s desire for swift intelligence. Colonel Dwight Sullivan, the top defense lawyer at the Pentagons Office of Military Commissions, which is expected eventually to try Mohammed for war crimes, called his serial confessions a textbook example of why we shouldnt allow coercive methods. The Bush Administration has gone to great lengths to keep secret the treatment of the hundred or so high-value detainees whom the C.I.A. has confined, at one point or another, since September 11th. The program has been extraordinarily compartmentalized, in the nomenclature of the intelligence world. By design, there has been virtually no access for outsiders to the C.I.A.s prisoners. The utter isolation of these detainees has been described as essential to Americas national
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security. The Justice Department argued this point explicitly last November, in the case of a Baltimore-area resident named Majid Khan, who was held for more than three years by the C.I.A. Khan, the government said, had to be prohibited from access to a lawyer specifically because he might describe the alternative interrogation methods that the agency had used when questioning him. These methods amounted to a state secret, the government argued, and disclosure of them could reasonably be expected to cause extremely grave damage. (The case has not yet been decided.) Given this level of secrecy, the public and all but a few members of Congress who have been sworn to silence have had to take on faith President Bushs assurances that the C.I.A.s internment program has been humane and legal, and has yielded crucial intelligence. Representative Alcee Hastings, a Democratic member of the House Select Committee on Intelligence, said, We talk to the authorities about these detainees, but, of course, theyre not going to come out and tell us that they beat the living daylights out of someone. He recalled learning in 2003 that Mohammed had been captured. It was good news, he said. So I tried to find out: Where is this guy? And how is he being treated? For more than three years, Hastings said, I could never pinpoint anything. Finally, he received some classified briefings on the Mohammed interrogation. Hastings said that he cant go into details about what he found out, but, speaking of Mohammeds treatment, he said that even if it wasnt torture, as the Administration claims, it aint right, either. Something went wrong. ince the drafting of the Geneva Conventions, the International Committee of the Red Cross has played a special role in safeguarding the rights of prisoners of war. For decades, governments have allowed officials from the organization to report on the treatment of detainees, to insure that standards set by international treaties are being maintained. The Red Cross, however, was unable to get access to the C.I.A.s prisoners for five years. Finally, last year, Red Cross officials were allowed to interview fifteen detainees, after they had been transferred to Guantnamo. One of the prisoners was Khalid Sheikh Mohammed. What the Red Cross learned has been kept from the public. The committee believes that its continued access to prisoners worldwide is contingent upon confidentiality, and therefore it addresses violations privately with the authorities directly responsible for prisoner treatment and detention. For this reason, Simon Schorno, a Red Cross spokesman in Washington, said, The I.C.R.C. does not comment on its findings publicly. Its work is confidential. The public-affairs office at the C.I.A. and officials at the congressional intelligence-oversight committees would not even acknowledge the existence of the report. Among the few people who are believed to have seen it are Condoleezza Rice, now the Secretary of State; Stephen Hadley, the national-security adviser; John Bellinger III, the Secretary of States legal adviser; Hayden; and John Rizzo, the agencys acting general counsel. Some members of the Senate and House intelligenceoversight committees are also believed to have had limited access to the report. Confidentiality may be particularly stringent in this case. Congressional and other Washington sources familiar with the report said that it harshly criticized the C.I.A.s practices. One of the
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sources said that the Red Cross described the agencys detention and interrogation methods as tantamount to torture, and declared that American officials responsible for the abusive treatment could have committed serious crimes. The source said the report warned that these officials may have committed grave breaches of the Geneva Conventions, and may have violated the U.S. Torture Act, which Congress passed in 1994. The conclusions of the Red Cross, which is known for its credibility and caution, could have potentially devastating legal ramifications. Concern about the legality of the C.I.A.s program reached a previously unreported breaking point last week when Senator Ron Wyden, a Democrat on the intelligence committee, quietly put a hold on the confirmation of John Rizzo, who as acting general counsel was deeply involved in establishing the agencys interrogation and detention policies. Wydens maneuver essentially stops the nomination from going forward. I question if theres been adequate legal oversight, Wyden told me. He said that after studying a classified addendum to President Bushs new executive order, which specifies permissible treatment of detainees, I am not convinced that all of these techniques are either effective or legal. I dont want to see well-intentioned C.I.A. officers breaking the law because of shaky legal guidance. A former C.I.A. officer, who supports the agencys detention and interrogation policies, said he worried that, if the full story of the C.I.A. program ever surfaced, agency personnel could face criminal prosecution. Within the agency, he said, there is a high level of anxiety about political retribution for the interrogation program. If congressional hearings begin, he said, several guys expect to be thrown under the bus. He noted that a number of C.I.A. officers have taken out professional liability insurance, to help with potential legal fees. Paul Gimigliano, a spokesman for the C.I.A., denied any legal impropriety, stressing that the agencys terrorist-detention program has been implemented lawfully. And torture is illegal under U.S. law. The people who have been part of this important effort are well-trained, seasoned professionals. This spring, the Associated Press published an article quoting the chairman of the House intelligence committee, Silvestre Reyes, who said that Hayden, the C.I.A. director, vehemently denied the Red Crosss conclusions. A U.S. official dismissed the Red Cross report as a mere compilation of allegations made by terrorists. And Robert Grenier, a former head of the C.I.A.s Counterterrorism Center, said that the C.I.A.s interrogations were nothing like Abu Ghraib or Guantnamo. They were very, very regimented. Very meticulous. He said, The program is very careful. Its completely legal. Accurately or not, Bush Administration officials have described the prisoner abuses at Abu Ghraib and Guantnamo as the unauthorized actions of ill-trained personnel, eleven of whom have been convicted of crimes. By contrast, the treatment of high-value detainees has been directly, and repeatedly, approved by President Bush. The program is monitored closely by C.I.A. lawyers, and supervised by the agencys director and his subordinates at the Counterterrorism Center. While Mohammed was being held by the agency, detailed dossiers on the treatment of detainees were regularly available to the former C.I.A. director George Tenet, according to informed sources inside
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and outside the agency. Through a spokesperson, Tenet denied making day-to-day decisions about the treatment of individual detainees. But, according to a former agency official, Every single plan is drawn up by interrogators, and then submitted for approval to the highest possible levelmeaning the director of the C.I.A. Any change in the planeven if an extra day of a certain treatment was addedwas signed off by the C.I.A. director. n September 17, 2001, President Bush signed a secret Presidential finding authorizing the C.I.A. to create paramilitary teams to hunt, capture, detain, or kill designated terrorists almost anywhere in the world. Yet the C.I.A. had virtually no trained interrogators. A former C.I.A. officer involved in fighting terrorism said that, at first, the agency was crippled by its lack of expertise. It began right away, in Afghanistan, on the fly, he recalled. They invented the program of interrogation with people who had no understanding of Al Qaeda or the Arab world. The former officer said that the pressure from the White House, in particular from Vice-President Dick Cheney, was intense: They were pushing us: Get information! Do not let us get hit again! In the scramble, he said, he searched the C.I.A.s archives, to see what interrogation techniques had worked in the past. He was particularly impressed with the Phoenix Program, from the Vietnam War. Critics, including military historians, have described it as a program of state-sanctioned torture and murder. A Pentagon-contract study found that, between 1970 and 1971, ninety-seven per cent of the Vietcong targeted by the Phoenix Program were of negligible importance. But, after September 11th, some C.I.A. officials viewed the program as a useful model. A. B. Krongard, who was the executive director of the C.I.A. from 2001 to 2004, said that the agency turned to everyone we could, including our friends in Arab cultures, for interrogation advice, among them those in Egypt, Jordan, and Saudi Arabia, all of which the State Department regularly criticizes for human-rights abuses. The C.I.A. knew even less about running prisons than it did about hostile interrogations. Tyler Drumheller, a former chief of European operations at the C.I.A., and the author of a recent book, On the Brink: How the White House Compromised U.S. Intelligence, said, The agency had no experience in detention. Never. But they insisted on arresting and detaining people in this program. It was a mistake, in my opinion. You cant mix intelligence and police work. But the White House was really pushing. They wanted someone to do it. So the C.I.A. said, Well try. George Tenet came out of politics, not intelligence. His whole modus operandi was to please the principal. We got stuck with all sorts of things. This is really the legacy of a director who never said no to anybody. Many officials inside the C.I.A. had misgivings. A lot of us knew this would be a can of worms, the former officer said. We warned them, Its going to become an atrocious mess. The problem from the start, he said, was that no one had thought through what he called the disposal plan. He continued, What are you going to do with these people? The utility of someone like K.S.M. is, at most, six months to a year. You exhaust them. Then what? It would have been better if we had executed them. The C.I.A. programs first important detainee was Abu Zubaydah, a top Al Qaeda operative, who
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was captured by Pakistani forces in March of 2002. Lacking in-house specialists on interrogation, the agency hired a group of outside contractors, who implemented a regime of techniques that one well-informed former adviser to the American intelligence community described as a Clockwork Orange kind of approach. The experts were retired military psychologists, and their backgrounds were in training Special Forces soldiers how to survive torture, should they ever be captured by enemy states. The program, known as SEREan acronym for Survival, Evasion, Resistance, and Escapewas created at the end of the Korean War. It subjected trainees to simulated torture, including waterboarding (simulated drowning), sleep deprivation, isolation, exposure to temperature extremes, enclosure in tiny spaces, bombardment with agonizing sounds, and religious and sexual humiliation. The SERE program was designed strictly for defense against torture regimes, but the C.I.A.s new team used its expertise to help interrogators inflict abuse. They were very arrogant, and pro-torture, a European official knowledgeable about the program said. They sought to render the detainees vulnerableto break down all of their senses. It takes a psychologist trained in this to understand these rupturing experiences. The use of psychologists was also considered a way for C.I.A. officials to skirt measures such as the Convention Against Torture. The former adviser to the intelligence community said, Clearly, some senior people felt they needed a theory to justify what they were doing. You cant just say, We want to do what Egypts doing. When the lawyers asked what their basis was, they could say, We have Ph.D.s who have these theories. He said that, inside the C.I.A., where a number of scientists work, there was strong internal opposition to the new techniques. Behavioral scientists said, Dont even think about this! They thought officers could be prosecuted. Nevertheless, the SERE experts theories were apparently put into practice with Zubaydahs interrogation. Zubaydah told the Red Cross that he was not only waterboarded, as has been previously reported; he was also kept for a prolonged period in a cage, known as a dog box, which was so small that he could not stand. According to an eyewitness, one psychologist advising on the treatment of Zubaydah, James Mitchell, argued that he needed to be reduced to a state of learned helplessness. (Mitchell disputes this characterization.) Steve Kleinman, a reserve Air Force colonel and an experienced interrogator who has known Mitchell professionally for years, said that learned helplessness was his whole paradigm. Mitchell, he said, draws a diagram showing what he says is the whole cycle. It starts with isolation. Then they eliminate the prisoners ability to forecast the futurewhen their next meal is, when they can go to the bathroom. It creates dread and dependency. It was the K.G.B. model. But the K.G.B. used it to get people who had turned against the state to confess falsely. The K.G.B. wasnt after intelligence. As the C.I.A. captured and interrogated other Al Qaeda figures, it established a protocol of psychological coercion. The program tied together many strands of the agencys secret history of Cold War-era experiments in behavioral science. (In June, the C.I.A. declassified long-held secret documents known as the Family Jewels, which shed light on C.I.A. drug experiments on rats and
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monkeys, and on the infamous case of Frank R. Olson, an agency employee who leaped to his death from a hotel window in 1953, nine days after he was unwittingly drugged with LSD.) The C.I.A.s most useful research focussed on the surprisingly powerful effects of psychological manipulations, such as extreme sensory deprivation. According to Alfred McCoy, a history professor at the University of Wisconsin, in Madison, who has written a history of the C.I.A.s experiments in coercing subjects, the agency learned that if subjects are confined without light, odors, sound, or any fixed references of time and place, very deep breakdowns can be provoked. Agency scientists found that in just a few hours some subjects suspended in water tanksor confined in isolated rooms wearing blacked-out goggles and earmuffsregressed to semi-psychotic states. Moreover, McCoy said, detainees become so desperate for human interaction that they bond with the interrogator like a father, or like a drowning man having a lifesaver thrown at him. If you deprive people of all their senses, theyll turn to you like their daddy. McCoy added that after the Cold War we put away those tools. There was bipartisan reform. We backed away from those dark days. Then, under the pressure of the war on terror, they didnt just bring back the old psychological techniquesthey perfected them. The C.I.A.s interrogation program is remarkable for its mechanistic aura. Its one of the most sophisticated, refined programs of torture ever, an outside expert familiar with the protocol said. At every stage, there was a rigid attention to detail. Procedure was adhered to almost to the letter. There was top-down quality control, and such a set routine that you get to the point where you know what each detainee is going to say, because youve heard it before. It was almost automated. People were utterly dehumanized. People fell apart. It was the intentional and systematic infliction of great suffering masquerading as a legal process. It is just chilling. he U.S. government first began tracking Khalid Sheikh Mohammed in 1993, shortly after his nephew Ramzi Yousef blew a gaping hole in the World Trade Center. Mohammed, officials learned, had transferred money to Yousef. Mohammed, born in either 1964 or 1965, was raised in a religious Sunni Muslim family in Kuwait, where his family had migrated from the Baluchistan region of Pakistan. In the mid-eighties, he was trained as a mechanical engineer in the U.S., attending two colleges in North Carolina. As a teen-ager, Mohammed had been drawn to militant, and increasingly violent, Muslim causes. He joined the Muslim Brotherhood at the age of sixteen, and, after his graduation from North Carolina Agricultural and Technical State University, in Greensborowhere he was remembered as a class clown, but religious enough to forgo meat when eating at Burger Kinghe signed on with the anti-Soviet jihad in Afghanistan, receiving military training and establishing ties with Islamist terrorists. By all accounts, his animus toward the U.S. was rooted in a hatred of Israel. In 1994, Mohammed, who was impressed by Yousefs notoriety after the first World Trade Center bombing, joined him in scheming to blow up twelve U.S. jumbo jets over two days. The so-called Bojinka plot was disrupted in 1995, when Philippine police broke into an apartment that
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Yousef and other terrorists were sharing in Manila, which was filled with bomb-making materials. At the time of the raid, Mohammed was working in Doha, Qatar, at a government job. The following year, he narrowly escaped capture by F.B.I. officers and slipped into the global jihadist network, where he eventually joined forces with Osama bin Laden, in Afghanistan. Along the way, he married and had children. Many journalistic accounts have presented Mohammed as a charismatic, swashbuckling figure: in the Philippines, he was said to have flown a helicopter close enough to a girlfriends office window so that she could see him; in Pakistan, he supposedly posed as an anonymous bystander and gave interviews to news reporters about his nephews arrest. Neither story is true. But Mohammed did seem to enjoy taunting authorities after the September 11th attacks, which, in his eventual confession, he claimed to have orchestrated from A to Z. In April, 2002, Mohammed arranged to be interviewed on Al Jazeera by its London bureau chief, Yosri Fouda, and took personal credit for the atrocities. I am the head of the Al Qaeda military committee, he said. And yes, we did it. Fouda, who conducted the interview at an Al Qaeda safe house in Karachi, said that he was astounded not only by Mohammeds boasting but also by his seeming imperviousness to the danger of being caught. Mohammed permitted Al Jazeera to reveal that he was hiding out in the Karachi area. When Fouda left the apartment, Mohammed, apparently unarmed, walked him downstairs and out into the street. In the early months of 2003, U.S. authorities reportedly paid a twenty-five-million-dollar reward for information that led to Mohammeds arrest. U.S. officials closed in on him, at 4 A.M. on March 1st, waking him up in a borrowed apartment in Rawalpindi, Pakistan. The officials hung back as Pakistani authorities handcuffed and hooded him, and took him to a safe house. Reportedly, for the first two days, Mohammed robotically recited Koranic verses and refused to divulge much more than his name. A videotape obtained by 60 Minutes shows Mohammed at the end of this episode, complaining of a head cold; an American voice can be heard in the background. This was the last image of Mohammed to be seen by the public. By March 4th, he was in C.I.A. custody. Captured along with Mohammed, according to some accounts, was a letter from bin Laden, which may have led officials to think that he knew where the Al Qaeda founder was hiding. If Mohammed did have this crucial information, it was time sensitivebin Laden never stayed in one place for longand officials needed to extract it quickly. At the time, many American intelligence officials still feared a second wave of Al Qaeda attacks, ratcheting the pressure further. According to George Tenets recent memoir, At the Center of the Storm, Mohammed told his captors that he wouldnt talk until he was given a lawyer in New York, where he assumed he would be taken. (He had been indicted there in connection with the Bojinka plot.) Tenet writes, Had that happened, I am confident that we would have obtained none of the information he had in his head about imminent threats against the American people. Opponents of the C.I.A.s approach, however, note that Ramzi Yousef gave a voluminous confession after being read his Miranda rights. These guys are egomaniacs, a former federal prosecutor said. They love to talk!
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complete picture of Mohammeds time in secret detention remains elusive. But a partial narrative has emerged through interviews with European and American sources in intelligence, government, and legal circles, as well as with former detainees who have been released from C.I.A. custody. People familiar with Mohammeds allegations about his interrogation, and interrogations of other high-value detainees, describe the accounts as remarkably consistent. Soon after Mohammeds arrest, sources say, his American captors told him, Were not going to kill you. But were going to take you to the very brink of your death and back. He was first taken to a secret U.S.-run prison in Afghanistan. According to a Human Rights Watch report released two years ago, there was a C.I.A.-affiliated black site in Afghanistan by 2002: an underground prison near Kabul International Airport. Distinctive for its absolute lack of light, it was referred to by detainees as the Dark Prison. Another detention facility was reportedly a former brick factory, just north of Kabul, known as the Salt Pit. The latter became infamous for the 2002 death of a detainee, reportedly from hypothermia, after prison officials stripped him naked and chained him to the floor of his concrete cell, in freezing temperatures. In all likelihood, Mohammed was transported from Pakistan to one of the Afghan sites by a team of black-masked commandos attached to the C.I.A.s paramilitary Special Activities Division. According to a report adopted in June by the Parliamentary Assembly of the Council of Europe, titled Secret Detentions and Illegal Transfers of Detainees, detainees were taken to their cells by strong people who wore black outfits, masks that covered their whole faces, and dark visors over their eyes. (Some personnel reportedly wore black clothes made from specially woven synthetic fabric that couldnt be ripped or torn.) A former member of a C.I.A. transport team has described the takeout of prisoners as a carefully choreographed twenty-minute routine, during which a suspect was hog-tied, stripped naked, photographed, hooded, sedated with anal suppositories, placed in diapers, and transported by plane to a secret location. A person involved in the Council of Europe inquiry, referring to cavity searches and the frequent use of suppositories during the takeout of detainees, likened the treatment to sodomy. He said, It was used to absolutely strip the detainee of any dignity. It breaks down someones sense of impenetrability. The interrogation became a process not just of getting information but of utterly subordinating the detainee through humiliation. The former C.I.A. officer confirmed that the agency frequently photographed the prisoners naked, because its demoralizing. The person involved in the Council of Europe inquiry said that photos were also part of the C.I.A.s quality-control process. They were passed back to case officers for review. A secret government document, dated December 10, 2002, detailing SERE Interrogation Standard Operating Procedure, outlines the advantages of stripping detainees. In addition to degradation of the detainee, stripping can be used to demonstrate the omnipotence of the captor or to debilitate the detainee. The document advises interrogators to tear clothing from detainees by firmly pulling downward against buttoned buttons and seams. Tearing motions shall be downward to
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prevent pulling the detainee off balance. The memo also advocates the Shoulder Slap, Stomach Slap, Hooding, Manhandling, Walling, and a variety of Stress Positions, including one called Worship the Gods. In the process of being transported, C.I.A. detainees such as Mohammed were screened by medical experts, who checked their vital signs, took blood samples, and marked a chart with a diagram of a human body, noting scars, wounds, and other imperfections. As the person involved in the Council of Europe inquiry put it, Its like when you hire a motor vehicle, circling where the scratches are on the rearview mirror. Each detainee was continually assessed, physically and psychologically. According to sources, Mohammed said that, while in C.I.A. custody, he was placed in his own cell, where he remained naked for several days. He was questioned by an unusual number of female handlers, perhaps as an additional humiliation. He has alleged that he was attached to a dog leash, and yanked in such a way that he was propelled into the walls of his cell. Sources say that he also claimed to have been suspended from the ceiling by his arms, his toes barely touching the ground. The pressure on his wrists evidently became exceedingly painful. Ramzi Kassem, who teaches at Yale Law School, said that a Yemeni client of his, Sanad al-Kazimi, who is now in Guantnamo, alleged that he had received similar treatment in the Dark Prison, the facility near Kabul. Kazimi claimed to have been suspended by his arms for long periods, causing his legs to swell painfully. Its so traumatic, he can barely speak of it, Kassem said. He breaks down in tears. Kazimi also claimed that, while hanging, he was beaten with electric cables. According to sources familiar with interrogation techniques, the hanging position is designed, in part, to prevent detainees from being able to sleep. The former C.I.A. officer, who is knowledgeable about the interrogation program, explained that sleep deprivation works. Your electrolyte balance changes. You lose all balance and ability to think rationally. Stuff comes out. Sleep deprivation has been recognized as an effective form of coercion since the Middle Ages, when it was called tormentum insomniae. It was also recognized for decades in the United States as an illegal form of torture. An American Bar Association report, published in 1930, which was cited in a later U.S. Supreme Court decision, said, It has been known since 1500 at least that deprivation of sleep is the most effective torture and certain to produce any confession desired. Under President Bushs new executive order, C.I.A. detainees must receive the basic necessities of life, including adequate food and water, shelter from the elements, necessary clothing, protection from extremes of heat and cold, and essential medical care. Sleep, according to the order, is not among the basic necessities. In addition to keeping a prisoner awake, the simple act of remaining upright can over time cause significant pain. McCoy, the historian, noted that longtime standing was a common K.G.B. interrogation technique. In his 2006 book, A Question of Torture, he writes that the Soviets found that making a victim stand for eighteen to twenty-four hours can produce excruciating pain, as ankles double in size, skin becomes tense and intensely painful, blisters erupt oozing watery serum,
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heart rates soar, kidneys shut down, and delusions deepen. Mohammed is said to have described being chained naked to a metal ring in his cell wall for prolonged periods in a painful crouch. (Several other detainees who say that they were confined in the Dark Prison have described identical treatment.) He also claimed that he was kept alternately in suffocating heat and in a painfully cold room, where he was doused with ice water. The practice, which can cause hypothermia, violates the Geneva Conventions, and President Bushs new executive order arguably bans it. Some detainees held by the C.I.A. claimed that their cells were bombarded with deafening sound twenty-fours hours a day for weeks, and even months. One detainee, Binyam Mohamed, who is now in Guantnamo, told his lawyer, Clive Stafford Smith, that speakers blared music into his cell while he was handcuffed. Detainees recalled the sound as ranging from ghoulish laughter, like the soundtrack from a horror film, to ear-splitting rap anthems. Stafford Smith said that his client found the psychological torture more intolerable than the physical abuse that he said he had been previously subjected to in Morocco, where, he said, local intelligence agents had sliced him with a razor blade. The C.I.A. worked people day and night for months, Stafford Smith quoted Binyam Mohamed as saying. Plenty lost their minds. I could hear people knocking their heads against the walls and doors, screaming their heads off. Professor Kassem said his Yemeni client, Kazimi, had told him that, during his incarceration in the Dark Prison, he attempted suicide three times, by ramming his head into the walls. He did it until he lost consciousness, Kassem said. Then they stitched him back up. So he did it again. The next time, he woke up, he was chained, and theyd given him tranquillizers. He asked to go to the bathroom, and then he did it again. This last time, Kazimi was given more tranquillizers, and chained in a more confining manner. The case of Khaled el-Masri, another detainee, has received wide attention. He is the German car salesman whom the C.I.A. captured in 2003 and dispatched to Afghanistan, based on erroneous intelligence; he was released in 2004, and Condoleezza Rice reportedly conceded the mistake to the German chancellor. Masri is considered one of the more credible sources on the black-site program, because Germany has confirmed that he has no connections to terrorism. He has also described inmates bashing their heads against the walls. Much of his account appeared on the front page of the Times. But, during a visit to America last fall, he became tearful as he recalled the plight of a Tanzanian in a neighboring cell. The man seemed psychologically at the end, he said. I could hear him ramming his head against the wall in despair. I tried to calm him down. I asked the doctor, Will you take care of this human being? But the doctor, whom Masri described as American, refused to help. Masri also said that he was told that guards had locked the Tanzanian in a suitcase for long periods of timea foul-smelling suitcase that made him vomit. (Masri did not witness such abuse.) Masri described his prison in Afghanistan as a filthy hole, with walls scribbled on in Pashtun and Arabic. He was given no bed, only a coarse blanket on the floor. At night, it was too cold to sleep.
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He said, The water was putrid. If you took a sip, you could taste it for hours. You could smell a foul smell from it three metres away. The Salt Pit, he said, was managed and run by the Americans. It was not a secret. They introduced themselves as Americans. He added, When anything came up, they said they couldnt make a decision. They said, We will have to pass it on to Washington. The interrogation room at the Salt Pit, he said, was overseen by a half-dozen English-speaking masked men, who shoved him and shouted at him, saying, Youre in a country where theres no rule of law. You might be buried here. According to two former C.I.A. officers, an interrogator of Mohammed told them that the Pakistani was kept in a cell over which a sign was placed: The Proud Murderer of 3,000 Americans. (Another source calls this apocryphal.) One of these former officers defends the C.I.A.s program by noting that there was absolutely nothing done to K.S.M. that wasnt done to the interrogators themselvesa reference to SERE-like training. Yet the Red Cross report emphasizes that it was the simultaneous use of several techniques for extended periods that made the treatment especially abusive. Senator Carl Levin, the chairman of the Senate Armed Services Committee, who has been a prominent critic of the Administrations embrace of harsh interrogation techniques, said that, particularly with sensory deprivation, theres a point where its torture. You can put someone in a refrigerator and its torture. Everything is a matter of degree. ne day, Mohammed was apparently transferred to a specially designated prison for high-value detainees in Poland. Such transfers were so secretive, according to the report by the Council of Europe, that the C.I.A. filed dummy flight plans, indicating that the planes were heading elsewhere. Once Polish air space was entered, the Polish aviation authority would secretly shepherd the flight, leaving no public documentation. The Council of Europe report notes that the Polish authorities would file a one-way flight plan out of the country, creating a false paper trail. (The Polish government has strongly denied that any black sites were established in the country.) No more than a dozen high-value detainees were held at the Polish black site, and none have been released from government custody; accordingly, no first-hand accounts of conditions there have emerged. But, according to well-informed sources, it was a far more high-tech facility than the prisons in Afghanistan. The cells had hydraulic doors and air-conditioning. Multiple cameras in each cell provided video surveillance of the detainees. In some ways, the circumstances were better: the detainees were given bottled water. Without confirming the existence of any black sites, Robert Grenier, the former C.I.A. counterterrorism chief, said, The agencys techniques became less aggressive as they learned the art of interrogation, which, he added, is an art. Mohammed was kept in a prolonged state of sensory deprivation, during which every point of reference was erased. The Council on Europes report describes a four-month isolation regime as typical. The prisoners had no exposure to natural light, making it impossible for them to tell if it was night or day. They interacted only with masked, silent guards. (A detainee held at what was most likely an Eastern European black site, Mohammed al-Asad, told me that white noise was piped in
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constantly, although during electrical outages he could hear people crying.) According to a source familiar with the Red Cross report, Khalid Sheikh Mohammed claimed that he was shackled and kept naked, except for a pair of goggles and earmuffs. (Some prisoners were kept naked for as long as forty days.) He had no idea where he was, although, at one point, he apparently glimpsed Polish writing on a water bottle. In the C.I.A.s program, meals were delivered sporadically, to insure that the prisoners remained temporally disoriented. The food was largely tasteless, and barely enough to live on. Mohammed, who upon his capture in Rawalpindi was photographed looking flabby and unkempt, was now described as being slim. Experts on the C.I.A. program say that the administering of food is part of its psychological arsenal. Sometimes portions were smaller than the day before, for no apparent reason. It was all part of the conditioning, the person involved in the Council of Europe inquiry said. Its all calibrated to develop dependency. The inquiry source said that most of the Poland detainees were waterboarded, including Mohammed. According to the sources familiar with the Red Cross report, Mohammed claimed to have been waterboarded five times. Two former C.I.A. officers who are friends with one of Mohammeds interrogators called this bravado, insisting that he was waterboarded only once. According to one of the officers, Mohammed needed only to be shown the drowning equipment again before he broke. Waterboarding works, the former officer said. Drowning is a baseline fear. So is falling. People dream about it. Its human nature. Suffocation is a very scary thing. When youre waterboarded, youre inverted, so it exacerbates the fear. Its not painful, but it scares the shit out of you. (The former officer was waterboarded himself in a training course.) Mohammed, he claimed, didnt resist. He sang right away. He cracked real quick. He said, A lot of them want to talk. Their egos are unimaginable. K.S.M. was just a little doughboy. He couldnt stand toe to toe and fight it out. The former officer said that the C.I.A. kept a doctor standing by during interrogations. He insisted that the method was safe and effective, but said that it could cause lasting psychic damage to the interrogators. During interrogations, the former agency official said, officers worked in teams, watching each other behind two-way mirrors. Even with this group support, the friend said, Mohammeds interrogator has horrible nightmares. He went on, When you cross over that line of darkness, its hard to come back. You lose your soul. You can do your best to justify it, but its well outside the norm. You cant go to that dark a place without it changing you. He said of his friend, Hes a good guy. It really haunts him. You are inflicting something really evil and horrible on somebody. Among the few C.I.A. officials who knew the details of the detention and interrogation program, there was a tense debate about where to draw the line in terms of treatment. John Brennan, Tenets former chief of staff, said, It all comes down to individual moral barometers. Waterboarding, in particular, troubled many officials, from both a moral and a legal perspective. Until 2002, when Bush
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Administration lawyers asserted that waterboarding was a permissible interrogation technique for enemy combatants, it was classified as a form of torture, and treated as a serious criminal offense. American soldiers were court-martialled for waterboarding captives as recently as the Vietnam War. A C.I.A. source said that Mohammed was subjected to waterboarding only after interrogators determined that he was hiding information from them. But Mohammed has apparently said that, even after he started coperating, he was waterboarded. Footnotes to the 9/11 Commission report indicate that by April 17, 2003a month and a half after he was capturedMohammed had already started providing substantial information on Al Qaeda. Nonetheless, according to the person involved in the Council of Europe inquiry, he was kept in isolation for years. During this time, Mohammed supplied intelligence on the history of the September 11th plot, and on the structure and operations of Al Qaeda. He also described plots still in a preliminary phase of development, such as a plan to bomb targets on Americas West Coast. Ultimately, however, Mohammed claimed responsibility for so many crimes that his testimony became to seem inherently dubious. In addition to confessing to the Pearl murder, he said that he had hatched plans to assassinate President Clinton, President Carter, and Pope John Paul II. Bruce Riedel, who was a C.I.A. analyst for twenty-nine years, and who now works at the Brookings Institution, said, Its difficult to give credence to any particular area of this large a charge sheet that he confessed to, considering the situation he found himself in. K.S.M. has no prospect of ever seeing freedom again, so his only gratification in life is to portray himself as the James Bond of jihadism. y 2004, there were growing calls within the C.I.A. to transfer to military custody the high-value detainees who had told interrogators what they knew, and to afford them some kind of due process. But Donald Rumsfeld, then the Defense Secretary, who had been heavily criticized for the abusive conditions at military prisons such as Abu Ghraib and Guantnamo, refused to take on the agencys detainees, a former top C.I.A. official said. Rumsfelds attitude was, Youve got a real problem. Rumsfeld, the official said, was the third most powerful person in the U.S. government, but he only looked out for the interests of his departmentnot the whole Administration. (A spokesperson for Rumsfeld said that he had no comment.) C.I.A. officials were stymied until the Supreme Courts Hamdan ruling, which prompted the Administration to send what it said were its last high-value detainees to Cuba. Robert Grenier, like many people in the C.I.A., was relieved. There has to be some sense of due process, he said. We cant just make people disappear. Still, he added, The most important source of intelligence we had after 9/11 came from the interrogations of high-value detainees. And he said that Mohammed was the most valuable of the high-value detainees, because he had operational knowledge. He went on, I can respect people who oppose aggressive interrogations, but they should admit that their principles may be putting American lives at risk. Yet Philip Zelikow, the executive director of the 9/11 Commission and later the State Departments top counsellor, under Rice, is not convinced that eliciting information from detainees
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justifies physical torment. After leaving the government last year, he gave a speech in Houston, in which he said, The question would not be, Did you get information that proved useful? Instead it would be, Did you get information that could have been usefully gained only from these methods? He concluded, My own view is that the cool, carefully considered, methodical, prolonged, and repeated subjection of captives to physical torment, and the accompanying psychological terror, is immoral. Without more transparency, the value of the C.I.A.s interrogation and detention program is impossible to evaluate. Setting aside the moral, ethical, and legal issues, even supporters, such as John Brennan, acknowledge that much of the information that coercion produces is unreliable. As he put it, All these methods produced useful information, but there was also a lot that was bogus. When pressed, one former top agency official estimated that ninety per cent of the information was unreliable. Cables carrying Mohammeds interrogation transcripts back to Washington reportedly were prefaced with the warning that the detainee has been known to withhold information or deliberately mislead. Mohammed, like virtually all the top Al Qaeda prisoners held by the C.I.A., has claimed that, while under coercion, he lied to please his captors. In theory, a military commission could sort out which parts of Mohammeds confession are true and which are lies, and obtain a conviction. Colonel Morris D. Davis, the chief prosecutor at the Office of Military Commissions, said that he expects to bring charges against Mohammed in a number of months. He added, Id be shocked if the defense didnt try to make K.S.M.s treatment a problem for me, but I dont think it will be insurmountable. Critics of the Administration fear that the unorthodox nature of the C.I.A.s interrogation and detention program will make it impossible to prosecute the entire top echelon of Al Qaeda leaders in captivity. Already, according to the Wall Street Journal, credible allegations of torture have caused a Marine Corps prosecutor reluctantly to decline to bring charges against Mohamedou Ould Slahi, an alleged Al Qaeda leader held in Guantnamo. Bruce Riedel, the former C.I.A. analyst, asked, What are you going to do with K.S.M. in the long run? Its a very good question. I dont think anyone has an answer. If you took him to any real American court, I think any judge would say there is no admissible evidence. It would be thrown out. The problems with Mohammeds coerced confessions are especially glaring in the Daniel Pearl case. It may be that Mohammed killed Pearl, but contradictory evidence and opinion continue to surface. Yosri Fouda, the Al Jazeera reporter who interviewed Mohammed in Karachi, said that although Mohammed handed him a package of propaganda items, including an unedited video of the Pearl murder, he never identified himself as playing a role in the killing, which occurred in the same city just two months earlier. And a federal official involved in Mohammeds case said, He has no history of killing with his own hands, although hes proved happy to commit mass murder from afar. Al Qaedas leadership had increasingly focussed on symbolic political targets. For him, its not personal, the official said. Its business. Ordinarily, the U.S. legal system is known for resolving such mysteries with painstaking care. But
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the C.I.A.s secret interrogation program, Senator Levin said, has undermined the publics trust in American justice, both here and abroad. A guy as dangerous as K.S.M. is, and half the world wonders if they can believe himis that what we want? he asked. Statements that cant be believed, because people think they rely on torture? Asra Nomani, the Pearls friend, said of the Mohammed confession, Im not interested in unfair justice, even for bad people. She went on, Danny was such a person of conscience. I dont think he would have wanted all of this dirty business. I dont think he would have wanted someone being tortured. He would have been repulsed. This is the kind of story that Danny would have investigated. He really believed in American principles.
ILLUSTRATION: GUY BILLOUT
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How will Obama deal with preventive detention? : The New Yorker
A REPORTER AT LARGE
THE HARD CASES

Will Obama institute a new kind of preventive detention for terrorist suspects?
by Jane Mayer
FEBRUARY 23, 2009
he last enemy combatant being detained in America is incarcerated at the U.S. Naval Consolidated Brig in Charleston, South Carolinaa tan, low-slung building situated amid acres of grassy swampland. The prisoner, known internally as EC#2, is an alleged Al Qaeda sleeper agent named Ali Saleh Kahlah al-Marri. He has been held in isolation in the brig for more than five years, although he has never stood trial or been convicted of any crime. Under rules established by the Bush Administration, suspected terrorists such as Marri were denied the legal protections traditionally afforded by the Constitution. Unless the Obama Administration overhauls the nations terrorism policies, Marriwho claims that he is innocentwill likely spend We dont own the problem, Greg Craig, the rest of his life in prison. the White House counsel, says. But well be held accountable for how we handle On September 10, 2001, Marri, a citizen of Qatar, this. who is now forty-three, came to America with his family. He had a student visa, and his ostensible purpose was to study computer programming at a small university in Peoria, Illinois. That December, he was arrested as a material witness in an investigation of the September 11th attacks. However, when Marri was on the verge of standing trial, in June, 2003, President George W. Bush ordered the military to seize him and hold him indefinitely. The Bush Administration contended that America was in a full-fledged war against terrorists, and that the President could therefore invoke extraordinary executive powers to detain Marri until the end of hostilities, on the basis of still secret evidence. That day, Marri was put on a military jet to Charleston, and since then he has been living as the only prisoner in an eighty-bed high-security wing of the brig, with no visits from family, friends, or the media. Jonathan Hafetz, a lawyer with the American Civil Liberties Union, who has taken the lead role
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in Marris legal defense, says that the Bush Administrations decision to leave him in sustained isolation was akin to stranding him on a desert island. Its a Robinson Crusoe-like situation, he told me. In 2005, Hafetz challenged the constitutionality of Marris imprisonment. A lower court affirmed the governments right to detain him indefinitely. After several appeals, the case is scheduled to be heard by the Supreme Court in April. Hafetz calls the Marri case a pivotal test of the most far-reaching use of detention powers ever asserted by an American President. The Courts calendar requires the Obama Administration to file a reply to the challenge by March 23rd. Unless some kind of diversionary action is takensuch as sending Marri home to Qatar, or working out a plea agreementthe Courts schedule will likely force the Obama Administration to offer quick answers to a host of complicated questions about its approach to fighting terrorism. John Bellinger III, who served as the counsel to the State Department under President Bush, says of officials in the Obama Administration, They will have to either put up or shut up. Do they maintain the Bush Administration position, and keep holding Marri as an enemy combatant? They have to come up with a legal theory. Among the issues to be decided, Hafetz says, is the question of who is a soldier, and who is a civilian. Is the fight against terrorism war, or is it not war? How far does the battlefield extend? In the past, they treated Peoria as a battlefield. Can an American be arrested in his own home and jailed indefinitely, on the say-so of the President? Hafetz wants the Supreme Court to rule that indefinite executive detention is illegal, and he hopes that Obama will withdraw Bushs executive order labelling Marri an enemy combatant, and issue a new one classifying him as a civilian. This shift would allow Marri either to be charged with crimes or to be released. The Obama Administrations strategy in the Marri case will almost certainly establish legal principles that will have ramifications for future cases, as well as for the two hundred and forty or so similarly designated unlawful enemy combatants held in the military prison at Guantnamo Bay, Cuba. During the Bush years, the designation encompassed not just members of Al Qaeda and the Taliban but also anyone who associated with them, supported them, or supported organizations associated with them, even if unwittingly. In 2004, a Bush Administration lawyer told a judge that, in theory, an enemy combatant could even be a little old lady in Switzerland whose charitable donations had been channelled, without her awareness, to Al Qaeda front groups. If the Marri case reaches the Supreme Court, it will test the limits of such theories. The case is therefore being closely watched by civil libertarians on both the left and the right. The Center for Constitutional Rights, a liberal advocacy organization, and the Cato and Rutherford Institutes, which lean to the right, are among the many legal groups that have signed eighteen amicus briefs on Marris behalf. Individual lawyers who have taken up his cause include Nicholas Katzenbach, the Attorney General in the Johnson Administration, and William Sessions, who was appointed director of the F.B.I. by President Reagan. The editorial page of the Times has written repeatedly about the case, demanding that the Fourth Circuit Court of Appeals affirmation of Marris military detention be
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reversed: People accused of bad deeds should be tried in courtnot in sham proceedings. They should be put in jailnot secret detention. No matter how Obama responds to the case, his decision is likely to arouse controversy. Hafetz says, If President Obama is serious about restoring the rule of law in America, they cant defend whats been done to Marri. They would be completely buying into the Bush Administrations war on terror. This view is widely held by Obamas political base. Yet the political risks of change are obvious. In 2004, Jeffrey Rapp, an analyst at the Defense Intelligence Agency, claimed in a sworn affidavit, without providing evidence, that Marri had met with Osama bin Laden in Afghanistan, and offered to be an al Qaeda martyr. The governments theory is that Marri came to America in order to help carry out a second wave of terrorist attacks. Al-Marri must be detained to prevent him from aiding al Qaeda in its efforts to attack the United States, Rapp said in his statement, which is the sole public document offering reasons for holding him. In early February, former Vice-President Dick Cheney increased the pressure on Obama, by warning that a catastrophic nuclear or biological terrorist attack on America would occur unless Obama kept the Bush policies in place. In an unusually contentious interview for an erstwhile high official, Cheney told Politico that the Obama Administration was more concerned about reading the rights to an Al Qaeda terrorist than they are with protecting the United States. Two days after Cheneys remarks were published, the White House was visited by families of victims killed in the September 11th attacks and in the bombing of the U.S.S. Cole, in 2000. Some of those families have organized an advocacy group, Military Families United, which claims sixty thousand members, and which has circulated a petition demanding that Congress reject all efforts by the Obama Administration to relocate any detained terrorist suspects to its members districts. Amid such competing viewpoints, a compromise idea has also emerged, which the Obama Administration is weighing. A number of national-security lawyers in both parties favor the creation of some new form of preventive detention. They do not believe that it is the Presidents prerogative to lock enemy combatants up indefinitely, yet they fear that neither the criminal courts nor the military system is suited for the handling of transnational terrorists, whom they do not consider to be ordinary criminals or conventional soldiers. Instead, they suggest that Obama should work with Congress to write new laws, possibly creating a national-security court, which could order certain suspects to be held without a trial. One proponent of this idea is Neal Katyal, whom Obama recently named to the powerful post of Principal Deputy Solicitor General, in the Justice Department. Katyal is best known for his victory as the lead counsel in Hamdan v. Rumsfeld (2006). In his first appearance before the Supreme Court, he persuaded a majority of the Justices to declare that the Guantnamo military-commission system was illegal, arguing that Congress had not authorized the commissions. Katyals new job is to represent the government before the Supreme Court. Given the sensitivity of this role, Katyal declined to comment for this story. But in October he posted an article on a Web site affiliated with Georgetown Law, in which he argued, What is needed is a serious plan to prosecute everyone we
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can in regular courts, and a separate system to deal with the very small handful of cases in which patently dangerous people cannot be tried. This new system, he wrote, would give the government the ability to temporarily detain a dangerous individual, including in situations where a criminal trial has failed. There are hundreds of legal variations that could be considered, he said. In 2007, Katyal published a related essay, co-written with Jack L. Goldsmith, a conservative Harvard Law School professor who served as the head of the Office of Legal Counsel in the Bush Justice Department. The essay argued that preventive detention, overseen by a congressionally authorized national-security court, was necessary to insure the sensible treatment of classified evidence, and to protect secret sources and methods of gathering intelligence. In his Web post, Katyal wrote, I support such a security court. Such schemes have already stirred considerable controversy elsewhere in the world, including in Great Britain, where since 2005 some three dozen terror suspects have been detained for a time under house-arrest-like conditions, in some cases being required to wear ankle monitors, obey curfews, and refrain from using phones or the Internet. In America, such a compromise is sure to alarm many human-rights advocates and civil libertarians, who regard indefinite detention as antithetical to the American legal systems most basic tenets. Alberto Mora, a Republican lawyer who, as general counsel of the Navy, broke with the Bush Administration after concluding that some of its brutal counterterrorism policies were potential war crimes, warns, We simply cant have indefinite detention. Due process and fundamental fairness make that clear. Marri himself is cautiously hopeful. Despite restrictions on his consumption of television and print news, he followed the Presidential campaign from inside the brig. According to Hafetz, Hes happy about Obama, but worried he wont be able to fulfill all the promises and expectations. Through his lawyers, Marri, speaking publicly for the first time, said, I am not asking to be taken at my word and to be released, although I very much want to go home to my family. All I am asking for is to be treated like every other person in the United States who is accused of a crime, including terrorism, and to be given a fair trial in an American court. s a candidate, Obama promised a sharp break with the Bush Administrations counter terrorism policies. In a written statement for the Boston Globe, Obama, who taught constitutional law in the nineteen-nineties, said, I reject the Bush Administrations claim that the President has plenary authority under the Constitution to detain U.S. citizens without charges as unlawful enemy combatants. (In fact, the Bush Administration went beyond this claim, arguing that Congress had explicitly granted the President this authority, in a bill passed after the attacks.) In the Globe, Obama went on, The detention of American citizens, without access to counsel, fair procedure, or pursuant to judicial authorization, as enemy combatants is unconstitutional. In his Inaugural Address, Obama further underscored his differences with Bush in this area, saying, As for our common defense, we reject as false the choice between our safety and our ideals. A top legal adviser to Obama told me that the President also believes that legal residents in America, like Marri, are entitled to due process.
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Former Bush Administration officials who were involved in its anti-terror program suggest that Obama may find it harder than expected to translate idealistic rhetoric into action. Governing is different from campaigning, says Bellinger, who predicts that Obama and his officials will soon discover that they cant just set the clocks back eight years, and try every terror suspect captured abroad in the federal courts. Bellinger now says that the treatment of Marri was a failed experiment. John Ashcroft, who was Attorney General when Marri was designated an enemy combatant, makes no such apologies. Interviewed just before the Inauguration, he defended what he described as a sound decision to maximize the national interest, and predicted that, in the end, President Obamas approach to handling terror suspects would closely mirror his own: How will he be different? The main difference is going to be that he spells his name O-b-a-m-a, not B-u-s-h. So far, the Obama Administration has declined to state a position on the Marri case. Its already becoming apparent, though, that Ashcroft was mistaken in his broader point. Obama, in his first week in office, issued three executive orders, undoing many of the most controversial elements of the Bush Administrations detention and interrogation programs. Most notably, Obama declared that the Administration hoped to close Guantnamo within a year. A little noticed memorandum issued at the time of the orders was dedicated to Marri. It called for a Cabinet-level inter-agency task force, led by Attorney General Eric Holder, to review Marris case, with an eye toward finding alternative ways to deal with him. The same officials will review the status of the enemy combatants held in Guantnamo. The Obama Administration has indicated that it hopes to return the majority of the detainees to other countries, or to try them in civilian and military courts. The looming question, however, is whether there is a category of terror suspect whose status precludes such options. Its unclear whether some home countries can provide fair trials or secure prisons. More important, the high standard of evidence required in U.S. courtsguilt must be proved beyond a reasonable doubtmight result in dangerous individuals being set free. Qatar has made known its interest in having Marri come home. But the Obama Administration has to decide whether he poses a recidivism riskan assessment that has to be made, in part, on the basis of statements elicited through torture. (Khalid Sheikh Mohammed, the self-described mastermind of the 9/11 plot, was waterboarded by the C.I.A., and reportedly said that Marri was a fellow-terrorist.) As such, Marri may exemplify what Greg Craig, Obamas White House counsel, calls the toughest question facing the Administration as it tries to bring the Bush program within the rule of law: what to do with the so-called third category of detaineessuspects who may be difficult to convict under the American standards of justice, but who may pose a palpable threat if released. epending upon how many such hard cases exist, Craig says, the Administration will decide whether new laws, including possibly those enabling some sort of preventive detention, are necessary. Although the detainees from the Bush era pose the most immediate problem, he said, its
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possible that the new Administration may also want to handle future prisoners outside the existing criminal- and military-court system. A good deal of policy research remains, he said. The door was not left open by accident. Obama wants the freedom to hear the recommendations of the most experienced and smartest people, on how to protect the American people while still respecting the rules of the road on liberty. He suggested that the Administration would prefer not to go in that direction. Its possible but hard to imagine Barack Obama as the first President of the United States to introduce a preventive-detention law, Craig said. Our presumption is that there is no need to create a whole new system. Our system is very capable. Then again, the idea is not being ruled out, which may be surprising to some constituents, given Obamas past support for civil liberties and Craigs own recordin the early nineties, he served as the chairman of the board of the International Human Rights Law Group, an advocacy organization now known as Global Rights. Obamas legal team is aware that every step it takes will be seen as an indication of core convictions. Craig, who will cordinate the revamping of the Bush Administrations legal policies on terrorism, said, One way weve looked at this is that we own the solution. We dont own the problemit was created by the previous Administration. But well be held accountable for how we handle this. The Obama Administration has already inflamed some members of the human-rights community. On February 9th, the Justice Department adopted the same position that Bush had taken in a case filed by the American Civil Liberties Union. The government attempted to squelch a lawsuit initiated by a group of terrorist suspectsone of whom had allegedly been tortured in Morocco after being transferred there by the C.I.A.on the ground that it would open up state secrets. Scott Horton, a law professor at Columbia University, characterized the new Justice Departments position as a betrayal of the promises of transparency and accountability made by Obama during the campaign. The first step in cases such as Marris, Craig suggests, will be to evaluate the dangerousness of each detainee, and to scrutinize all documents passed on by the previous Administration. We need the facts, he said. And we need fresh eyes. For years, John Ashcroft has justified the military detention of Marri as a safety precaution. Sometimes the criminal courts are not up to it, he told me. But, as the new team reviews Marris story, it will likely find ample grounds to reassess the notion that the courts cant handle terror suspects, and that such suspects cant be safely housed in the United States without incident. n a recent interview, David Kelley, a former U.S. Attorney for the Southern District of New York, who supervised the early stages of the Marri case, revealed that he had warned his bosses in the Justice Department that they were making a mistake by sidestepping the criminal courts. Kelley co-chaired the Justice Departments nationwide investigation into the 9/11 attacks, and headed the investigations into the 2000 attack on the U.S.S. Cole, in Yemen, and the 1998 bombings of the U.S. Embassies in Kenya and Tanzania; he also led the prosecution of Ramzi Yousef, in the 1993 World Trade Center bombing. In 2003, he successfully prosecuted John Walker Lindh, the American
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accused of aiding the Taliban. In the interview, Kelley said he believed that the government had a strong case against Marri: he had been charged with credit-card fraud, bank fraud, identity theft, and lying to a federal agent. He thought that Marri could be convicted in a matter of a few months, and sentenced to years in prison. Kelley, who is now a partner at Cahill Gordon, in Manhattan, was disappointed when, on the basis of a one-page executive order, Marri was suddenly sent to the brig. My view is, we havent really exhausted the potential for using the criminal-justice system, he said. James Benjamin, a former federal prosecutor in the Southern District of New York, is now a partner at the law firm Akin Gump. In 2008, he co-wrote a review of the Marri case, characterizing the switch to military detention as counterproductive. Definitely, the criminal-justice system can handle someone like Marri, he told me. They caught him under the criminal-justice system. And, based on what we know, they were poised to convict him. What happened to Marri before he was moved proves the system was up to it. Marty Lederman, a former Georgetown Law professor, whom Obama has appointed to be a deputy in the Justice Departments Office of Legal Counsel, argues that the Bush Administrations claims to be acting out of necessity were nonsense. In an essay published before he joined the Administration, Lederman wrote, Even if everything the government alleges about al-Marris ties to al Qaeda are true, he was not a danger because he was already incapacitatedimprisoned within the criminal-justice system, where his trial was pending. Marri had aroused the suspicion of law-enforcement officers almost as soon as he arrived in the Midwest with his wife, Maha, who spoke no English, and their five young children. His timing was conspicuoushe arrived in Chicago the day before 9/11. The next day, the family took a hundredand-fifty-mile taxi ride to Peoria. Marri enrolled in computer-science classes at Bradley University, where he and a brother had obtained undergraduate degrees. Qatar, which has one of the highest per-capita incomes in the world, pays college tuition for many of its citizens, and several members of the Marri family have attended school in America. According to the Washington Post, as an undergraduate at Bradley Marri wore a ponytail and was known for his partying and his quick sense of humor. He returned to Qatar in 1991, after graduation. Later that decade, a palace coup in Qatar shook his family, eventually prompting some members to leave for Saudi Arabia, where many of his brothers and his wife now live. Marri reportedly ended up in Afghanistan. According to the sworn statement given by Jeffrey Rapp, the D.I.A. analyst, at some point between 1996 and 1998 Marri was trained in chemical weaponry at an Al Qaeda camp there. (Marri, through his lawyer, denied these allegations.) Patrick Theros, who was the U.S. Ambassador to Qatar during this period, is skeptical of the terrorism allegations. Ive never heard anyone say this Qatari kid did anything, he told me. Theros described Qatar as both religiously conservative and tolerant, and says that as far as he knows it is home to virtually no violent radical Islamic movements.
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In the summer of 2000, Marri returned to Illinois, where he allegedly registered a carpet business in Macomb, and opened multiple bank accounts, under a false name and Social Security number. When he went back in the fall of 2001, according to the Washington Post, he had a briefcase filled with hundred-dollar bills. Rapps statement claims that Marri had obtained more than thirteen thousand dollars in cash from Mustafa Ahmed al-Hawsawi, the financier in the United Arab Emirates who is known to have bankrolled the September 11th hijackers. Phone records apparently offered further evidence of a tie between Marri and Hawsawi. Law-enforcement authorities pieced together this picture bit by bit. In September, according to the Post, local police stopped Marri while he was driving, checked his license, and discovered an outstanding warrant for drunken driving, dating back to his earlier student days, as well as the briefcase filled with cash. The police notified the F.B.I. Several weeks later, his lawyers say, a cell-phone salesman, noting discrepancies in Marris identification documents, also called the bureau. In October and December, 2001, F.B.I. agents interviewed Marri; they say that he offered to let them search his laptop computer, his minivan, and his small rental apartment. Later, Marris lawyers argued that the agents had failed to obtain a warrant, and that the information from the search could therefore not be admitted into evidence. According to Rapps statement, Marris computer was filled with information on deadly poisons, including a step-by-step guide to making hydrogen cyanidea toxic substance that can be used in poison-gas attacks. Marri, in claiming his innocence, has had no chance to see the evidence against him. Asked recently why he was researching such chemicals, Marri, through his lawyers, gave his first public answer. He was doing research for a family member in the petrochemical industry to be used for industrial purposes. The research involved visiting Web sites that contained hundreds of nonpoisonous chemicals (not just cyanide). And even cyanide has numerous industrial uses. The laptop also reportedly contained lectures by bin Laden, and unsent e-mails to an address that Rapp said was connected to Khalid Sheikh Mohammed. Some of Marris e-mails were encoded. Upon discovering this information in his laptop, the F.B.I. arrested Marri as a material witness to its investigation of the attacks. Soon after, he was charged with credit-card fraud and with failing to tell the F.B.I. about his 2000 visit to America and his phone calls to Hawsawi. On the morning of June 23, 2003, only days before Marris defense team was to make its arguments about suppressing the laptop and other evidence, one of his lawyers received a phone call informing him that a U.S. Attorney would be making an unexpected appearance at the courthouse that day. President Bush, the lawyers soon learned, had signed an executive order directing the military to seize Marri. We should have seen it for what it wasthe foreshadowing of an Administration that was going to forsake the Constitution in the war on terror, Lawrence Lustberg, one of the earliest defense lawyers on what has come to be Marris team, said. From then on, we didnt see Marri or hear from him again until late 2004. He just went into the abyss. Before agreeing to transfer Marri to the brig, however, the presiding judge in the case ruled that the White House would be barred from charging Marri again with the same crimes. In legal jargon,
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the original charges were dismissed with prejudice, to protect Marris right not to be placed in double jeopardy. As a result, if the Obama Administration decides to charge him in the criminal system now, it has to bring a different set of charges, unless Marris lawyers offer a deal. Benjamin, the former prosecutor, insists that there is a whole bag of tools for dealing with truly bad guysthere are many other statutes that the government could explore, including material support of terrorism, conspiracy charges, and mail- and wire-fraud charges. But, he suggests, by taking Marri outside the regular criminal system theres no doubt they made all kinds of problems for themselves. Andrew McCarthy, a former federal terrorism prosecutor who writes for National Review, defends Marris transfer to the brig. Sure, the criminal-justice system, by permitting Marris pretrial detention, neutralized him, at least for a time, he says. But theres always the chance the court will release a defendant on bail. Moreover, he argues that open criminal trials run many risks, including the accidental, or oblique, disclosure of classified information. Its also unclear how to handle witnesses who may themselves be terrorists: they may demand immunity before they will talk. Or it may be that their testimony was obtained by unsavory means, which could scuttle a conviction. In the Marri case, however, it does not appear that a fear of losing led Bush to transfer him to the Navy brig. Kelley, for example, thought that the case the government had was solid. Instead, it appears that the real motive was frustration on the part of the Justice Department at being unable to make Marri confess. Kelley was told to push him hard, which he did, but Marri kept professing his innocence. As Ashcroft wrote in his 2006 book about fighting terrorism, Never Again, Al-Marri rejected numerous offers to improve his lot by cooperating with the F.B.I. investigators and providing information. He insisted on becoming a hard case. Mark Berman, an early member of Marris defense team, asserts that the Bush Administration really just wanted to interrogate him in a rough manner. No doubt about it. The right to remain silent is a fundamental aspect of the American justice system. Justice John Paul Stevens, dissenting in the 2004 case Rumsfeld v. Padilla, wrote, Executive detention of subversive citizens, like detention of enemy soldiers to keep them off the battlefield, may sometimes be justified to prevent persons from launching or becoming missiles of destruction. It may not, however, be justified by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure. For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny. he summer of 2003, when Marri entered the brig, was the height of the Bush Administrations program of authorized abusive interrogations. The C.I.A. had just taken Khalid Sheikh Mohammed into custody, and was using extreme measures to make him divulge information (much of which he later recanted). Marri was among those whom Mohammed apparently implicated during this period. By then, Bush appointees in the Justice Department had produced numerous memos
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advising the C.I.A. and the Pentagon that there were virtually no legal impediments to the use of physical and psychological force to break unlawful enemy combatants. Suspects considered especially high value were subjected to extreme sensory deprivation and other harsh tactics, which were modelled on Soviet and Chinese torture programs that had been studied and copied by the C.I.A. Inside the Charleston brig, documents show, officials were ordered to follow the same rules as those at Guantnamo. Lustberg, however, says, Ive been to Guantnamo. Marri was far more isolated. He had no contact with any other detainees. Most days, he had no human contact at all. For the first six months, Marri was kept in an eight-foot-by-ten-foot cell with one blacked-out window, no social interaction, and nothing to do or to read. An internal report, declassified in 2005, showed that during this period the Department of Defense ordered the removal of the mattress, pillow, and Koran of a detainee in the brig. Marri was also deprived of visits from the Red Cross, in violation of international laws. He was denied hot food, and consistently felt cold: he was given no socks, and his bed had only a stiff anti-suicide blanketone that cannot be made into a noose. Andrew Savage, the local counsel for Marri in Charleston, says, It was a psychological effort to devalue him. He was going crazy. He thought the smells from the nearby paper mill were poisoning him. At other points, Marri started feeling tingles all over, and began hallucinating that microphones had been installed in his cell. He was getting delusional, Savage said. When unidentified interrogators finally showed up at the brig, Marri told them that he needed three things: a blanket, shoes, and socks. If he was given those, he said, he would talk to them in another six months. He said, You deprive me? Ill deprive you, Savage said. Instead, the interrogators got rougher. Marri was chained in a fetal position on the floor. When he started to chant prayers rather than listen to the interrogators questions, Savage said, they tried to silence him by wrapping duct tape around his mouth. When he kept humming, they tried to gag him. But as they started to tape a sock in his mouth he began to choke, causing the agents to panic and stop. The episode was documented by closed-circuit surveillance cameras, Pentagon officials have confirmed. A spokesperson for Lieutenant General Michael Maples, the director of the Defense Intelligence Agency, told the Times that Maples considered Marris treatment acceptable. But the Pentagon has refused to share the tape of the gagging, which evidently still exists, with Marris defense team. Though the Defense Department has admitted to erasing a number of other tapes of Marri, the surviving tapes could prove damaging should the case go to trial. Despite the so-called enhanced interrogation tactics used on Marri, he continued to insist that he had never met Osama bin Laden, was not a terrorist, and wished the U.S. no harm. If Marri was cast into military detention in order to make him confess, it didnt work. Im not surprised, Kelley said. I dont know of many instances where other agencies have got more out of defendants than the F.B.I. can. In October, 2004, after a sixteen-month blackout, Marris defense lawyers were finally allowed to meet with him again. The Supreme Court had just ruled, in Rasul v. Bush and in Hamdi v.
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Rumsfeld, that unlawful enemy combatants were entitled to legal representation and some form of due process. As three of his defense lawyers watched from one side of a glass partition, Marri was brought in wearing a belly chain and shackles, which were bolted to the floor. Guards wearing black gloves and covered I.D. tags stood by. It was unbelievably emotional, Lustberg recalls. We had fought so hard for the right to see him. He was obviously suffering the effects of long-term isolation. He seemed paranoid, scattered, distracted, and disturbed. He was showing signs of mental illness. Berman recalls, He was much thinner. Mentally, hed been through a lot. He was a little off-kilter. As the debate over indefinite detention intensifies, Marris example may prove cautionary to those who think that it can be designed in a humane way. Savage, the Charleston lawyer, now speaks to Marri by phone every few days, and visits him in person every other week. He believes that nothing has been tougher on his client than the uncertainty of not knowing if he would ever be released. He would have preferred beatings, Savage said. Hed say, Andy, its worse than beating. He wanted to be sent to Egypt to be renditioned. Hed say, Torture mebut end it! By the spring of 2005, Savage feared that Marri was, as he put it, slipping away. Previously undisclosed correspondence between Marri and his attorneys shows that he was thinking about getting a divorce; as he later explained to Savage, he thought that his wife should marry his brother rather than be abandoned in his absence. I feel something will happen to me, Marri wrote in February, 2005. I want to make sure everything is documented. Two months later, he wrote, My body is tired & I dont know how long I can take it anymore. In the spring of 2007, Marri gave Savage power of attorney, as if preparing to die. Given the reputation that military prisons have developed after the abuse scandals at Guantnamo and Abu Ghraib, the lawyers for Marri were surprised to discover that they had allies in the Navy brig who shared their concerns over Marris treatment. Unlike the staff at Abu Ghraib, the brig staff had been trained for the job. Their mission, as they saw it, was to run a safe, professional, and humane prison, regardless of who was held there. It was the political appointees in Washington, at the Pentagon and the Department of Justice, who wanted Marri to be kept in prolonged isolation. In 2005, Savage discovered that the head of security at the brig, Air Force Major Chris Ferry, would stay all night with Marri. Hed go down to the brig and sit with him, and tell him to hold on. Chris was there at three in the morning, on the darkest nights. Geoff Morrell, a Pentagon spokesman, would not allow Ferry to be interviewed for this story, saying, Given that President Obama has ordered a review of the al-Marri case, we feel it would be best to complete that work before publicly discussing any further the specific aspects of his detention or interrogation. Morrell added, The Department of Defense treats all detainees humanely, and this is particularly true in the case of al-Marri, for whom we have taken extraordinary measures to insure his physical and mental well-being. In 2005, Marris lawyers filed suit against the Department of Defense, alleging that conditions at the brig were causing a mental health emergency for Marri. Savage said, Later, we found the
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biggest lobbyists for improved conditions were . . . the staff of the brig. The commanders were terrific. They kept rotating through. My sense is that they saw things becoming too pressured psychologically. Theyre good G.I. Joesthey salute and follow orders. But theyre human. Documents released in response to a Freedom of Information request by the Allard K. Lowenstein International Human Rights Clinic, at Yale Law School, show that unnamed officers in the brig worried that the enemy combatants being held there at the time were close to losing their sanity. I fear the rubber band is near the breaking point, one internal e-mail said. Other e-mails show that unnamed brig staff officers fought to get the detainees almost anything to occupy their minds, from a deck of cards to a soccer ball. Their concern wasnt entirely altruistic. In his despair, Marri had increasingly become non-compliant, covering the closed-circuit cameras in his cell with spitballs, refusing to eat, and throwing cups of his urine at guards. After Savage filed suit, Marris conditions started to improve, and so did his behavior. Marri was gradually given reading material and exercise equipment. A year after his father died, in 2007, an imam was sent to the brig to tell him. More recently, he was granted the right to make two phone calls a year to his family. (Last month, however, he was denied a visit from his eldest son.) Savage is now allowed to bring him Muslim religious texts, which he spends most of his time poring over, and kosher food from a deli in Charleston, whose method of food preparation resembles that prescribed by halal. Marris conditions have so improved that his lawyers jokingly refer to him these days as the Emir of the S.H.U.the high-security wing of the brig is known as the Special Housing Unit. He remains the sole prisoner in the wing, but he now has the regular use of three cells, which he refers to as his executive suite. One cell contains a memory-foam mattress. Another houses a personal library containing hundreds of volumes. The third contains alcohol-free cleaning supplies, in compliance with his Muslim religious needs. When visitors come, he sees them in an upper-tier room that he calls his summer chalet. He also has exclusive access to a thousand-square-foot dayroom equipped with a treadmill and an elliptical machine. Officially barred from watching the evening news, Marri has become a devotee of Stephen Colbert and Jon Stewartwhom he calls that Jewish guy. Marri is still not always a model prisoner. At one point, he became angry at Stephanie Wright, the brigs commander at the time, for being slow in getting him medicine that he had requested. He picked up a guards two-way radio, which had been left unattended, and screamed into it, Stephanie! This is meAliEC#2! Move your ass! His voice was heard over all the radios in the brig. Guards came running toward him. I think he acted out for his own entertainment, Savage said. Since prison censors cut many of the hard-news stories out of the papers he received, Marri began sending brig authorities frequent notes about local ads. As Savage recalls it, one note said, Its a two-for-one sale on upholstered chairs! Ill take the purpleyou can have the lime green.
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oon after Obama issued the executive order to close Guantnamo, Republican Senator Pat Roberts, of Kansas, called unacceptable any possibility that detainees might be moved to Fort Leavenworth, the Department of Defenses only maximum-security prison, which is in Robertss home state. Senator Chris Bond, of Missouri, the ranking Republican on the Senate Intelligence Committee, warned that he could not think of any city or town across this country that will be thrilled to have Khalid Sheikh Mohammad or Abu Zubaydah living down the street. But in Charleston, where the only enemy combatant in America really does live down the street, the picture is more reassuring. In December, Marri, wearing goggles, earmuffs, a belly chain, and shackles, was led out of his cell block. No one told him where he was going, but the guards said that he had a visitor. The destination, it turned out, was the visitors center, where the commander of the brig, John Pucciarelli, who was transferring out of the facility the next day, had two things to tell him. According to Savage, Pucciarelli said that he was sorry that he had been unable to do more for Marri, but he had treated him as well as he could. He also said that there was a gift waiting for Marri, back in the dayroom. When Marri returned, he found a thirty-two-inch-screen television. Andrew Savage was delighted. Although he had been skeptical about Marri, he has become convinced that he poses no danger. I dont fear him, not personally and not for the United States, Savage said. Is he putting me on? Scamming me? Putting it over on me? I really dont think so. Im not nave. Ive defended multi-murderers, child murderers, child molesters, and all sorts of violent criminals. But I really dont think Alis a terrorist. Michael McGovern, a former Assistant U.S. Attorney for the Southern District of New York, who indicted Marri, scoffs at Savages notion that he is harmless. I find that statement pretty remarkable, given that the evidence showed that he was communicating directly with the masterminds of the 9/11 attacks. Before the Bush Administrations experiments with executive detention, the way to settle such disputes was in the courtroom. Depending on how Obama decides to move ahead, that situation may prevail again. If so, he will have history and tradition on his side. As Hafetz puts it, In the more than two hundred and thirty years since this countrys founding, we have not found a better way to find the truth than through a criminal trial.
ILLUSTRATION: GUY BILLOUT
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The Green Light | Politics | Vanity Fair
http://www.vanityfair.com/politics/features/2008/05/guantanamo200805.print
politics
the white house
May 2008
The Green Light

As the first anniversary of 9/11 approached, and a prized Guantnamo detainee wouldnt talk, the Bush administrations highest-ranking lawyers argued for extreme interrogation techniques, circumventing international law, the Geneva Conventions, and the armys own Field Manual. The attorneys would even fly to Guantnamo to ratchet up the pressurethen blame abuses on the military. Philippe Sands follows the torture trail, and holds out the possibility of war crimes charges.
by Philippe Sands
Changing the long-accepted rules on interrogation required concerted action. From left: Undersecretary of Defense Douglas J. Feith, then vice-presidential counsel David S. Addington, then White House counsel Alberto Gonzales, President George W. Bush, and Vice President Dick Cheney. Photo illustration by Chris Mueller.
he abuse, rising to the level of torture, of those captured and detained in the war on terror is a defining feature of the presidency of George W. Bush. Its military beginnings, however, lie not in Abu Ghraib, as is commonly thought, or in the rendition of prisoners to other countries for questioning, but in the treatment of the very first prisoners at Guantnamo. Starting in late 2002 a detainee bearing the number 063 was tortured over a period of more than seven weeks. In his story lies the answer to a crucial question: How was the decision made to let the U.S. military start using coercive interrogations at Guantnamo? The Bush administration has always taken refuge behind a trickle up explanation: that is, the decision was generated by military commanders and interrogators on the ground. This explanation is false. The origins lie in actions taken at the very highest levels of the administrationby some of the most senior personal advisers to the president, the vice president, and the secretary of defense. At the heart of the matter stand several political appointeeslawyerswho, it can be argued, broke their ethical codes of conduct and took themselves into a zone of international criminality, where formal investigation is now a very real option. This is the story of how the torture at Guantnamo began, and how it spread.
crying. angry. yelled for allah.
One day last summer I sat in a garden in London with Dr. Abigail Seltzer, a psychiatrist who specializes in trauma victims. She divides her time between Great Britains National Health Service, where she works extensively with asylum seekers and other refugees, and the Medical Foundation for the Care of Victims of Torture. It was uncharacteristically
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warm, and we took refuge in the shade of some birches. On a table before us were three documents. The first was a November 2002 action memo written by William J. (Jim) Haynes II, the general counsel of the U.S. Department of Defense, to his boss, Donald Rumsfeld; the document is sometimes referred to as the Haynes Memo. Haynes recommended that Rumsfeld give blanket approval to 15 out of 18 proposed techniques of aggressive interrogation. Rumsfeld duly did so, on December 2, 2002, signing his name firmly next to the word Approved. Under his signature he also scrawled a few words that refer to the length of time a detainee can be forced to stand during interrogation: I stand for 810 hours a day. Why is standing limited to 4 hours? The second document on the table listed the 18 proposed techniques of interrogation, all of which went against long-standing U.S. military practice as presented in the Army Field Manual. The 15 approved techniques included certain forms of physical contact and also techniques intended to humiliate and to impose sensory deprivation. They permitted the use of stress positions, isolation, hooding, 20-hour interrogations, and nudity. Haynes and Rumsfeld explicitly did not rule out the future use of three other techniques, one of which was waterboarding, the application of a wet towel and water to induce the perception of drowning. The third document was an internal log that detailed the interrogation at Guantnamo of a man identified only as Detainee 063, whom we now know to be Mohammed al-Qahtani, allegedly a member of the 9/11 conspiracy and the so-called 20th hijacker. According to this log, the interrogation commenced on November 23, 2002, and continued until well into January. The techniques described by the log as having been used in the interrogation of Detainee 063 include all 15 approved by Rumsfeld. Was the detainee abused? Was he tortured?, I asked Seltzer. Cruelty, humiliation, and the use of torture on detainees have long been prohibited by international law, including the Geneva Conventions and their Common Article 3. This total ban was reinforced in 1984 with the adoption of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which criminalizes torture and complicity in torture. A careful and fastidious practitioner, Seltzer declined to give a straight yes or no answer. In her view the definition of torture is essentially a legal matter, which will turn on a particular set of facts. She explained that there is no such thing as a medical definition of torture, and that a doctor must look for pathology, the abnormal functioning of the body or the mind. We reviewed the definition of torture, as set out in the 1984 Convention, which is binding on 145 countries, including the United States. Torture includes any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person. Seltzer had gone through the interrogation log, making notations. She used four different colors to highlight moments that struck her as noteworthy, and the grim document now looked bizarrely festive. Yellow indicated episodes of abusive treatment. Pink showed where the detainees rights were respectedwhere he was fed or given a break, or allowed to sleep. Green indicated the many instances of medical involvement, where al-Qahtani was given an enema or was hospitalized suffering from hypothermia. Finally, blue identified what Seltzer termed expressions of distress. We talked about the methods of interrogation. In terms of their effects, she said, I suspect that the individual techniques are less important than the fact that they were used over an extended period of time, and that several appear to be used together: in other words, the cumulative effect. Detainee 063 was subjected to systematic sleep deprivation. He was shackled and cuffed; at times, head restraints were used. He was compelled to listen to threats to his family. The interrogation leveraged his sensitivities as a Muslim: he was shown pictures of scantily clad models, was touched by a female interrogator, was made to stand naked, and was forcibly shaved. He was denied the right to pray. A psychiatrist who witnessed the interrogation of Detainee 063 reported the use of dogs, intended to intimidate by getting the dogs close to him and then having the dogs bark or act aggressively on command. The temperature was changed, and 063 was subjected to extreme cold. Intravenous tubes were forced into his body, to provide nourishment when he would not eat or drink.
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We went through the marked-up document slowly, pausing at each blue mark. Detainee 063s reactions were recorded with regularity. Ill string some of them together to convey the impression: Detainee began to cry. Visibly shaken. Very emotional. Detainee cried. Disturbed. Detainee began to cry. Detainee bit the IV tube completely in two. Started moaning. Uncomfortable. Moaning. Began crying hard spontaneously. Crying and praying. Very agitated. Yelled. Agitated and violent. Detainee spat. Detainee proclaimed his innocence. Whining. Dizzy. Forgetting things. Angry. Upset. Yelled for Allah. The blue highlights went on and on. Urinated on himself. Began to cry. Asked God for forgiveness. Cried. Cried. Became violent. Began to cry. Broke down and cried. Began to pray and openly cried. Cried out to Allah several times. Trembled uncontrollably. Was Detainee 063 subjected to severe mental pain or suffering? Torture is not a medical concept, Seltzer reminded me. That said, she went on, over the period of 54 days there is enough evidence of distress to indicate that it would be very surprising indeed if it had not reached the threshold of severe mental pain. She thought about the matter a little more and then presented it a different way: If you put 12 clinicians in a room and asked them about this interrogation log, you might get different views about the effect and long-term consequences of these interrogation techniques. But I doubt that any one of them would claim that this individual had not suffered severe mental distress at the time of his interrogation, and possibly also severe physical distress.
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Print: Memorial for Americas conscience Print - Salon.com
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Memorial for Americas conscience

On this holiday, Americans should confront a grim fact about our country: We are torturers
BY BILL MOYERS AND MICHAEL WINSHIP
Its no secret such cruelty occurred; its just the truth wed rather not think about. But Memorial Day is a good time to make the effort. Because if we really want to honor the Americans in uniform who gave their lives fighting for their country, well redouble our efforts to make sure were worthy of their sacrifice; well renew our commitment to the rule of law, for the rule of law is essential to any civilization worth dying for. After 9/11, our government turned to torture, seeking information about the terrorists who committed the atrocity and others who might follow after them. Senior officials ordered the torture of men at military bases and detention facilities in Afghanistan and Iraq, in secret CIA prisons set up across the globe, and in other countries including Libya and Egypt where abusive regimes were asked to do Washingtons dirty work. The best known of all the prisons remains Guantanamo on the southeast coast of Cuba. For years, the United States naval base there seemed like an isolated vestige of the Cold War defying the occasional threat from Fidel Castro to shut it down. But since 9/11, Guantanamo Gitmo has been a detention center, an extraterritorial island jail considered outside the jurisdiction of US civilian courts and rules of evidence. Like the notorious Room 101 of George Orwells 1984, the chamber that contains the thing each victim fears the most to make them confess, Guantanamos name has become synonymous with torture. Nearly 800 people have been held there. George W. Bush eventually released 500 of them, sometimes after years of confinement and cruelty. Barack Obama has freed 67, but 169 remain, even though the president pledged to close the Guantanamo prison within a year of his inauguration. Now, forty-six are so dangerous, our government says, they will be held indefinitely, without trial. We almost never see the detainees. Were it not for the work of human rights organizations and the forest of lawsuits that have arisen from our actions, the prisoners would be out of sight, out of mind. Five of the Guantanamo prisoners were recently arraigned before a military commission for their role in the attacks. One of them is Khalid Sheikh Mohammed, who says he was the mastermind behind 9/11. He was waterboarded by interrogators 183 times. Pentagon officials predict it will be at least another year before the five go on trial. Earlier this month, lawyers for Mohammed al-Qahtani the so-called 20th hijacker who didnt make it onto the
In this Oct. 9, 2007 file photo US military personnel inspect each occupied cell on a two-minute cycle at Camp 5 maximum-security facility on Guantanamo Bay U.S. Naval Base in Cuba. (Credit: AP Photo/Brennan Linsley, file)
Facing the truth is hard to do, especially the truth about ourselves. So Americans have been sorely pressed to come to terms with the fact that after 9/11 our government began to torture people, and did so in defiance of domestic and international law. Most of us havent come to terms with what that meant, or means today, but we must reckon with torture, the torture done in our name, allegedly for our safety.
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planes filed suit in New York federal court to make public what they described as extremely disturbing videotapes of his interrogations. He was charged in 2008 with war crimes and murder but the charges were dropped after the former convening authority for the Guantanamo military commissions, Susan Crawford, told journalist Bob Woodward that al-Qahtanis treatment met the legal definition of torture. He remains in indefinite detention, as does Abu Zubaydah, a Saudi citizen alleged to have run terrorist training camps. He was waterboarded at least 83 times in a single month. Just this week a federal appeals court refused to release information on the interrogation methods the CIA used on Abu Zubaydah and other terrorist suspects. You may also have seen the flurry of action this month around a section of the new National Defense Authorization Act that allows the military to detain indefinitely not only members of al Qaeda, the Taliban and associated forces but anyone who has substantially supported them. A federal court struck down that provision in response to journalists and advocates who believe it could be so broadly interpreted it would violate civil liberties. Nonetheless, two days after the courts decision, the House of Representatives reaffirmed the original provision. The other day, eight members of the Bush Administration including President Bush, Vice President Cheney, and Defense Secretary Rumsfeld were found guilty of torture and other war crimes by an unofficial tribunal meeting in Malaysia. The story was played widely in parts of the world press, with reports that the judgment could lead the way to proceedings before the International Criminal Court in The Hague. It received almost no mention here in the United States. This summer, its believed that the United States Senates intelligence committee finally will release a report on enhanced interrogation techniques, that euphemistic phrase for what any reasonable person not employed by the government would call torture. The report has been three years in the making, with investigators examining millions of classified documents. The news service Reuters says the report will conclude that techniques such as waterboarding and sleep deprivation do not yield worthwhile intelligence information. So here we are, into our eleventh year after 9/11, still at war in Afghanistan, still at war with terrorists, still at war with our collective conscience as we grapple with how to protect our country from attack without violating the basic values of civilization the rule of law, striving to achieve our aims without corrupting them, and restraint in the use of power over others, especially when exercised in secret. In future days and years, how will we come to cope with the reality of what we have done in the name of security? Many other societies do seem to try harder than we do to come to terms with horrendous behavior commissioned or condoned by a government. Beginning in 1996, in South Africa, the Truth and Reconciliation Commission held hearings at which whites and blacks struggled to confront the cruelty inflicted on human beings during apartheid. And perhaps you caught something said the other day by the president of Brazil, Dilma Roussef. During the early seventies she was held in prison and tortured repeatedly by the military dictators who ruled her country for nearly 25 years. The state of Rio de Janeiro has announced it will officially apologize to her. Earlier, when she swore in members of a commission investigating the dictatorship, President Roussef said: We are not moved by revenge, hate or a desire to rewrite history. The need to know the full truth is what moves us. In other words, You shall know the truth and the truth shall make you free.
Bill Moyers is managing editor of the new weekly public affairs program, "Moyers & Company," airing on public television. Check local airtimes or comment at www.BillMoyers.com.
Michael Winship is senior writing fellow at Demos and a senior writer of the new series, Moyers & Company, airing on
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public television.
Copyright 2011 Salon.com. All rights reserved.
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Print: Bush aide blasts torture Print - Salon.com
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Bush aide blasts torture

Philip Zelikow tried to warn Bush on interrogations. Now he's penned an authoritative article on how he was ignored
BY JORDAN MICHAEL SMITH
The Bush administration hasnt heard the last from Philip Zelikow. After the rediscovery last week of his long lost 2006 anti-torture memo, Zelikow, a former State Department official, has written arguably the most damning article yet about U.S. governments interrogation policies from 2001 to 2009. The article, called Codes of Conduct for a Twilight War, will be released in a forthcoming issue of the Houston Law Journal, and was obtained exclusively by Salon. Says Zelikow in an email: Im not aware of other accounts that combine historical, policy and legal approaches to the subject of the Bush administrations interrogation methods.
(Credit: Reuters/Jim Young)
Based on published histories and his firsthand observations, and adapted from a lecture delivered in November, the article calls the administrations rationale for its use of torture which he nonetheless insists only on calling extreme interrogation and coercive methods radical, an amazing contention, untenable and extreme, unsustainable, an unprecedented program of coolly calculated dehumanizing abuse and physical torment, and, finally, simply a mistake. He concludes: This was a collective failure of American public leadership, in which a number of officials and members of Congress (and staffers) of both parties played a part, endorsing a CIA program of physical coercion without any precedent in U.S. history. In fact, The only defense against criminal prosecution would be that officials acted in good faith reliance on the advice of their government lawyers. Part of what makes Zelikows analysis so damning and definitive is its judiciousness. The article is deeply empathetic of the uniquely fearful situation under which the Bush administration was initially operating. Zelikow calls the Sept. 11 attacks a collective trauma and a shoc[k] to mass beliefs. He notes that Bush and others spent time in burn units, morgues and with survivors of the attacks. One traumatic experienced often overlooked overlooked because it appeared in Stephen Hayes stenographic biography of Dick Cheney was that the vice-presidents daughter was (falsely, it turns out) told that her house with her children in it had tested positive for anthrax. Similarly, Cheney and National Security Advisor Condoleezza Rice were told that they and others had been exposed to an extremely lethal toxin in a particular area of the White House and might soon die as a result. The alarms did not stop and they too were not abstract The pressure on Bush and his senior advisers was so direct because so much of the response had to be invented and improvised, the article reads. An additional factor in the power of the article is Zelikows credibility and history. Before entering government, he was a
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civil rights lawyer in Texas battling the Ku Klux Klan and then a highly esteemed Harvard historian specializing in U.S. foreign policy he co-authored one book with Rice. He then served on the National Security Council under President George H.W. Bush and directed the 9/11 Commission before becoming counselor to Rice at the State Department from 2005 to 2007. He currently volunteers part-time on the Presidents Intelligence Advisory Board under President Obama. Such bipartisan, establishment credentials render the breakdown and conclusion of this article all the more damning. He believes that what should have been a political and moral question should the United States torture captives? became strictly a legal matter left up to government lawyers, few of whom had any experience with these issues, and who had to take the necessity of extreme measures as a given. These lawyers then became secular priests, granting absolution to the supplicant policymakers, Zelikow writes. The problems began when the Office of the Vice President and the CIA took central roles in policymaking. Cheney felt himself above the rest of the National Security Council, bypassing Rice and other traditional channels of national security policymaking. Ad-hoc decision-making and improvisation became a habit of thought, which seemed initially to pay off in the security of the nation, as well as in Bushs political standing and self-confidence. With Cheney and CIA head George Tenet the key entrepreneurs in setting codes of conduct for the War on Terror, it was essentially left to their obsequious lawyers to decide, in secret, on the interrogation methods America should employ. Bush even told the Senates Intelligence Committee chairman that the vice president should be your point of contact [He] has the portfolio for intelligence activities. Decisions were made to jettison international treaties. By December 2001, the CIA was already interested in reverse-engineering methods heretofore used only to treat Americans to resist enemy torture. When a senior al-Qaida member was captured in March 2002, the prototype for the administrations torture policies was already developed. So, for the first time in American history, leaders of the U.S. government carefully devised ways and means to torment enemy captives. Zelikow notes that None of the policy or moral issues connected with these choices appear to have been analyzed in any noticeable way. Perhaps worst of all, no serious consideration was given to weighing the costs of benefits of the torture program, with reference to relevant historical precedents and/or examinations of the respective French, British and Israeli experiences in dealing with captured terrorists. Bush and Rice should have insisted on this, Zelikow writes. The 52-page article observes the successes of Obamas counterterrorism policies after repudiating the use of torture. On the basis of the empirical evidence then, [t]here is no evident correlations between intelligence success and the available of extreme interrogation methods, no matter what Bush and Cheney claim. Finally, The programs costs which include the high-level effort expended in order to establish, maintain, and defense the program appear on the evidence so far to have well outweighed any unique value the program might have had as a method of counterterrorism intelligence collection. This is apart from the damage to Americas international standing and corrosion of its traditional values. Zelikow concludes his analysis by arguing that, although the Obama administration has the right to wage war and use extralegal methods to defeat al-Qaida, its claim of that authority to defeat associated forces is unwarranted. The U.S. government should publish and explain any overarching policy and legal documents that guide and confine the conduct of deadly operation against its foreign enemies the executive branch of the U.S. government has a duty to articulate the scope of its warfare to the Congress and the public. The Bush administrations unprecedented elevation of torture to national policy may be history, but the job to get U.S. foreign policy in line with its constitutional and moral obligations is far from over.
Jordan Michael Smith writes about U.S. foreign policy for Salon. He has written for the New York Times, Boston Globe and Washington Post.
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Print: The memo Bush tried to destroy Print - Salon.com
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http://www.salon.com/2012/04/04/the_memo_bush_tried_to_destroy/singleton WEDNESDAY, APR 4, 2012 4:45 PM UTC
The memo Bush tried to destroy

A document advising the Bush administration against torture has resurfaced, despite his best efforts to hide it
BY JORDAN MICHAEL SMITH
In February of 2006, Philip Zelikow, counselor to Secretary of State Condoleezza Rice, authored a memo opposing the Bush administrations torture practices (though he employed the infamous obfuscation of enhanced interrogation techniques). The White House tried to collect and destroy all copies of the memo, but one survived in the State Departments bowels and was declassified yesterday in response to a Freedom of Information Act request by the National Security Archive. The memo argues that the Convention Against Torture, and the Constitutions prohibitions against cruel and unusual punishment, do indeed apply to the George W. Bush in 2006 (Credit: AP/Ron Edmonds) CIAs use of waterboard[ing], walling, dousing, stress positions, and cramped confinement. Zelikow further wrote in the memo that we are unaware of any precedent in World War II, the Korean War, the Vietnam War, or any subsequent conflict for authorized, systematic interrogation practices similar to those in question here, even when the prisoners were presumed to be unlawful combatants. According to the memo, the techniques are legally prohibited, even if there is a compelling state interest to justify them, since they should be considered cruel and unusual punishment and shock the conscience. Chillingly, the memo notes that corrective techniques, such as slaps, may be legally sustained, as might be [C]ontrol conditions, such as nudity, sleep deprivation, and liquid dietsdepending on the circumstances and details of how these techniques are used. However much distress Zelikows memo caused the White House, it was not an ACLU briefing paper. Im pleased the memo is now part of the historical record and available for study, Zelikow wrote Salon in an email. The White House had determined that the memo which was not binding since Zelikows was a bureaucratic position without legal authority was too dangerous to exist. I later heard the memo was not considered appropriate for further discussion and that copies of my memo should be collected and destroyed, he said in a May 2009 congressional hearing. At that hearing, before the Senate Committee on the Judiciary, Subcommittee on Administrative Oversight and the Courts, Zelikow said he had no view on whether former officials should be prosecuted, a decision he thinks should be left to institutions. However, he did call for a thorough inquiry and a public report examining how the U.S. came to employ torture.
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Of course, no such inquiry was ever launched. The Obama administration declined to revisit the U.S. employment of torture, with the president saying he didnt want to look back. Zelikow believes this was a mistake. I still believe an inquiry would be useful, though less so as time passes and more information becomes available, especially after the 9/11 trials conclude, hopefully this year, he says in an email. During his congressional testimony, Zelikow declined to say whether Department of Justice lawyers acted improperly or immorally, conceding only that their opinions were unsound, even unreasonable. But in a 2007 lecture in Houston, he had no problem saying the cool, carefully considered, methodical, prolonged, and repeated subjection of captives to physical torment, and the accompanying psychological terror, is immoral. The importance of the memo lies in its revelation that there was real, serious debate inside the Bush administration about how to interrogate captured terrorist suspects. The members of the White House declined to enter that debate indeed, they did their best to squash it. The destruction of Zelikows carefully reasoned memo suggests the White House did not want any record of alternative views even existing, lest they be considered reasonable or people get the idea that the torture policies were thought controversial even by members of the administration.
Jordan Michael Smith writes about U.S. foreign policy for Salon. He has written for the New York Times, Boston Globe and Washington Post.
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Print: Extraordinary rendition lawsuit also window into low point for ...
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http://www.salon.com/2011/09/02/rendition_lawsuit/singleton FRIDAY, SEP 2, 2011 9:30 PM UTC
Extraordinary rendition lawsuit also window into low point for American experiment
A fight between subcontractors leads to the publication of details of the CIA's secret kidnapping program
BY ALEX PAREENE
A lawsuit between two aviation companies concerning a couple hundred thousand dollars in unpaid expenses has inadvertently led to the publicizing of a great deal of information about the CIAs extraordinary rendition program. (The program involved the illegal transport of thousands of terrorism suspects to secret CIA prisons in foreign nations and then to countries where suspects could be tortured. It is basically kidnapping followed by torture but the CIA did it so no one went to jail for it.) The records from this lawsuit between two sub-contractors involved in the The lobby of the CIA Headquarters Building in McLean, Virginia, August 14, 2008. REUTERS/Larry Downing (UNITED STATES) (Credit: Larry Downing / Reuters) renditions will eventually be taught in an undergrad history course titled America: Where It All Went Wrong. Detainees were transported by the same companies that fly billionaires on private jets to their resort vacations. (The CIA doesnt have an air force, so they relied on massive government contractor DynCorp, which just rented some private planes.) We learn that the CIA provided the flights with letters from a fictional State Department official (the State Department was almost certainly not involved in the rendition program) providing diplomatic cover. We learn that one the planes used to transport a suspect (Abu Omar, captured in Italy and tortured in Egypt) was owned by the co-owner of the Boston Red Sox. The plane sported a Red Sox logo on the tail. I mean a Yankees plane mightve been more poetically apt but either way it seems like such a pat symbol of Americas behavior in the wretched first decade of the 21st century that Id roll my eyes at it if it turned up in a piece of fiction. An executives private plane, sporting the logo of a rich baseball team and carrying an Imam captured overseas by the CIA, touches down in Egypt, a nation led by an American-backed strongman, where the Imam is to be tortured. What preachy liberal hack dreamed up that one? (The executive also owns part of Liverpool FC, because we cant forget Great Britains help in all this.) Then the hedge funds took an interest in privatized torture: DynCorp was purchased in 2003 by Computer Sciences Corp., another leading federal contractor, in a $940 million merger. Computer Sciences Corp. then took on a supervising role in the rendition flights through 2006,
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according to invoices and emails in the court files. CSC sold three DynCorp units in 2005 to Veritas Capital Fund, a private equity firm, for $850 million, but retained ownership of other parts of the old company. Veritas in turn sold the restructured DynCorp now known as DynCorp International for about $1 billion in 2010 to Cerebrus Capital Management, another private equity fund. So at least a couple rich people got even richer off of our national shame. Theres an upside to everything.
Alex Pareene writes about politics for Salon and is the author of "The Rude Guide to Mitt." Email him at apareene@salon.com and follow him on Twitter @pareene
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Print: Torture crimes officially, permanently shielded Print - Salon.com
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http://www.salon.com/2011/07/01/torture_51/singleton FRIDAY, JUL 1, 2011 11:02 AM UTC
Torture crimes officially, permanently shielded

The DOJ, with the exception of two likely murders, closes the book on all of the past decade's torture crimes
BY GLENN GREENWALD
In August, 2009, Attorney General Eric Holder under continuous, aggressive prodding by the Obama White House announced that three categories of individuals responsible for Bush-era torture crimes would be fully immunized from any form of criminal investigation and prosecution: (1) Bush officials who ordered the torture (Bush, Cheney, Rice, Powell, Ashcroft, Rumsfeld); (2) Bush lawyers who legally approved it (Yoo, Bybee, Levin), and (3) those in the CIA and the military who tortured within the confines of the permission slips they were given by those officials and lawyers (i.e., good-faith torturers). The one exception to this sweeping immunity was that low-level CIA agents and servicemembers who went so far beyond the torture permission slips as to basically commit brutal, unauthorized murder would be subject to a preliminary review to determine if a full investigation was warranted in other words, the Abu Ghraib model of justice was being applied, where only low-ranking scapegoats would be subject to possible punishment while high-level officials would be protected. Yesterday, it was announced that this preliminary review by the prosecutor assigned to conduct it, U.S. Attorney John Durham, is now complete, and exactly as one would expect even this category of criminals has been almost entirely protected, meaning a total legal whitewash for the Bush torture regime: The Justice Department has opened full criminal investigations of the deaths in CIA custody of two detainees, including one who perished at Iraqs notorious Abu Ghraib prison, U.S. officials said Thursday. The decision, announced by Attorney General Eric H. Holder Jr., means continued legal jeopardy for several CIA operatives but at the same time closes the book on inquiries that potentially threatened many others. A federal prosecutor reviewed 101 cases in which agency officers and contractors interrogated suspected terrorists during years of military action after the Sept. 11, 2001, attacks but found cause to pursue criminal cases in only two. . . . The two token cases to be investigated involve the most grotesque brutality imaginable: they apparently are (1) a detainee who froze to death in an American secret prison in Afghanistan in 2002 after being ordered stripped and chained to a concrete floor, and (2) the 2003 death of a detainee at Abu Ghraib whose body was infamously photographed by guards giving a thumbs-up sign. All other crimes in the Bush torture era will be fully protected. Lest there be any doubt about what a profound victory this is for those responsible for the torture regime, consider the reaction of the CIA: On this, my last day as director, I welcome the news that the broader inquiries are behind us, said a statement from CIA Director Leon Panetta, who will take over as defense secretary on Friday. We are now finally about to close this chapter of our agencys history . . . . At CIA headquarters on Thursday, Holders announcement was greeted with relief. . . . Consider whats being permanently shielded from legal accountability. The Bush torture regime extended to numerous prisons around the world, in which tens of thousands of mostly Muslim men were indefinitely imprisoned without a whiff of due process, and included a network of secret prisons black sites purposely placed beyond the monitoring reach of even international human rights groups, such as the International Red Cross.
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Print: Torture crimes officially, permanently shielded Print - Salon.com
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Over 100 detainees died during U.S. interrogations, dozens due directly to interrogation abuse. Gen. Barry McCaffrey said: We tortured people unmercifully. We probably murdered dozens of them during the course of that, both the armed forces and the C.I.A. Maj. Gen. Antonio Taguba, who oversaw the official investigation into detainee abuse, wrote: there is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account. Thanks to the Obama DOJ, that is no longer in question. The answer is resoundingly clear: American war criminals, responsible for some of the most shameful and inexcusable crimes in the nations history the systematic, deliberate legalization of a worldwide torture regime will be fully immunized for those crimes. And, of course, the Obama administration has spent years just as aggressively shielding those war criminals from all other forms of accountability beyond the criminal realm: invoking secrecy and immunity doctrines to prevent their victims from imposing civil liability, exploiting their partys control of Congress to suppress formal inquiries, and pressuring and coercing other nations not to investigate their own citizens torture at American hands. All of those efforts, culminating in yesterdays entirely unsurprising announcement, means that the U.S. Government has effectively shielded itself from even minimal accountability for its vast torture crimes of the last decade. Without a doubt, that will be one of the most significant, enduring and consequential legacies of the Obama presidency.
Follow Glenn Greenwald on Twitter: @ggreenwald.
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Print: There is no rule of law in America Print - Salon.com
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http://www.salon.com/2011/05/31/legality_america_torture/singleton TUESDAY, MAY 31, 2011 5:01 PM UTC
There is no rule of law in America

In our nation of torture, assassinations and foreign invasions, the question of legality has become obsolete
BY TOM ENGELHARDT A detainee shields his face as he peers out through the so-called "bean hole" which is used to pass food and other items into detainee cells, at Camp Delta detention center, Guantanamo Bay U.S. Naval Base, Cuba, Monday, Dec. 4, 2006.
A detainee shields his face as he peers out through the so-called "bean hole" which is used to pass food and other items into detainee cells, at Camp Delta detention center, Guantanamo Bay U.S. Naval Base, Cuba, Monday, Dec. 4, 2006.
Is the Libyan war legal? Was Bin Ladens killing legal? Is it legal for the president of the United States to target an American citizen for assassination? Were those enhanced interrogation techniques legal? These are all questions raised in recent weeks. Each
seems to call out for debate, for answers. Or does it? Now, you couldnt call me a legal scholar. Ive never set foot inside a law school, and in 66 years only made it onto a single jury (dismissed before trial when the civil suit was settled out of court). Still, I feel at least as capable as any constitutional law professor of answering such questions. My answer is this: they are irrelevant. Think of them as twentieth-century questions that dont begin to come to grips with twenty-first century American realities. In fact, think of them, and the very idea of a nation based on the rule of law, as a reflection of nostalgia for, or sentimentality about, a long-lost republic. At least in terms of what used to be called foreign policy, and more recently national security, the United States is now a post-legal society. (And you could certainly include in this mix the too-big-to-jail financial and corporate elite.) Its easy enough to explain what I mean. If, in a country theoretically organized under the rule of law, wrongdoers are never brought to justice and nobody is held accountable for possibly serious crimes, then you dont have to be a constitutional law professor to know that its citizens actually exist in a post-legal state. If so, Is it legal? is the wrong question to be asking, even if we have yet to discover the right one. Pretzeled Definitions of Torture Of course, when it came to a range of potential Bush-era crimes the use of torture, the running of offshore black sites, the extraordinary rendition of terrorist suspects to lands where they would be tortured, illegal domestic spying and wiretapping, and the launching of wars of aggression its hardly news that no one of the slightest significance has ever been brought to justice. On taking office, President Obama offered a clear formula for dealing with this issue. He insisted that Americans should look forward, not backward and turn the page on the whole period, and then set his Justice Department to work on other matters. But honestly, did anyone anywhere ever doubt that no Bush-era official would be brought to trial here for such potential crimes? Everyone knows that in the United States if youre a robber caught breaking into someones house, youll be brought to trial, but if youre caught breaking into someone elses country, youll be free to take to the lecture circuit, write your memoirs, or become a university professor. Of all the debates over legality in the Bush and Obama years, the torture debate has perhaps been the most interesting, and in some ways, the most realistic. After 9/11, the Bush administration quickly turned to a crew of hand-picked Justice Department lawyers to create the necessary rationale for what its officials most wanted to do in their quaint phrase,
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take the gloves off. And those lawyers responded with a set of pseudo-legalisms that put various methods of information extraction beyond the powers of the Geneva Conventions, the U.N.s Convention Against Torture (signed by President Ronald Reagan and ratified by the Senate), and domestic anti-torture legislation, including the War Crimes Act of 1996 (passed by a Republican Congress). In the process, they created infamously pretzled new definitions for acts previously accepted as torture. Among other things, they essentially left the definition of whether an act was torture or not to the torturer (that is, to what he believed he was doing at the time). In the process, acts that had historically been considered torture became enhanced interrogation techniques. An example would be waterboarding, which had once been bluntly known as the water torture or the water cure and whose perpetrators had, in the past, been successfully prosecuted in American military and civil courts. Such techniques were signed off on after first reportedly being demonstrated in the White House to an array of top officials, including the vice-president, the national security adviser, the attorney general, and the secretary of state. In the U.S. (and here was the realism of the debate that followed), the very issue of legality fell away almost instantly. Newspapers rapidly replaced the word torture when applied to what American interrogators did with the term enhanced interrogation techniques, which was widely accepted as less controversial and more objective. At the same time, the issue of the legality of such techniques was superseded by a fierce national debate over their efficacy. It has lasted to this day and returned with a bang with the bin Laden killing. Nothing better illustrates the nature of our post-legal society. Anti-torture laws were on the books in this country. If legality had truly mattered, it would have been beside the point whether torture was an effective way to produce actionable intelligence and so prepare the way for the killing of a bin Laden. By analogy, its perfectly reasonable to argue that robbing banks can be a successful and profitable way to make a living, but who would agree that a successful bank robber hadnt committed an act as worthy of prosecution as an unsuccessful one caught on the spot? Efficacy wouldnt matter in a society whose central value was the rule of law. In a post-legal society in which the ultimate value espoused is the safety and protection a national security state can offer you, it means the world. As if to make the point, the Supreme Court recently offered a post-legal ruling for our moment: it declined to review a lower court ruling that blocked a case in which five men, who had experienced extraordinary rendition (a fancy globalized version of kidnapping) and been turned over to torturing regimes elsewhere by the CIA, tried to get their day in court. No such luck. The Obama administration claimed (as had the Bush administration before it) that simply bringing such a case to court would imperil national security (that is, state secrets) and won. As Ben Wizner, the American Civil Liberties Union lawyer who argued the case, summed matters up, To date, every victim of the Bush administrations torture regime has been denied his day in court. To put it another way, every CIA torturer, all those involved in acts of rendition, and all the officials who okayed such acts, as well as the lawyers who put their stamp of approval on them, are free to continue their lives untouched. Recently, the Obama administration even went to court to prevent a lawyer for a former CIA officer convicted in Italy in the kidnapping of a radical Muslim cleric from privately sharing classified information about the case with a Federal District Court judge. (Yes, Virginia, elsewhere in the world a few Americans have been tried in absentia for Bush-era crimes.) In response, wrote Scott Shane of the New York Times, the judge pronounced herself literally speechless. The realities of our moment are simple enough: other than abusers too low-level (see England, Lynndie and Graner, Charles) to matter to our national security state, no one in the CIA, and certainly no official of any sort, is going to be prosecuted for the possible crimes Americans committed in the Bush years in pursuit of the Global War on Terror. On Not Blowing Whistles Its beyond symbolic, then, that only one figure from the national security world seems to remain in the legal
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crosshairs: the whistle-blower. If, as the president of the United States, you sign off on a system of warrantless surveillance of Americans the sort that not so long ago was against the law in this country or if you happen to run a giant telecom company and go along with that system by opening your facilities to government snoops, or if you run the National Security Agency or are an official in it overseeing the kind of data mining and intelligence gathering that goes with such a program, then as recent years have made clear you are above the law. If, however, you happen to be an NSA employee who feels that the agency has overstepped the bounds of legality in its dealings with Americans, that it is moving in Orwellian directions, and that it should be exposed, and if you offer even unclassified information to a newspaper reporter, as was the case with Thomas Drake, be afraid, be very afraid. You may be prosecuted by the Bush and then Obama Justice Departments, and threatened with 35 years in prison under the Espionage Act (not for espionage, but for having divulged the most minor of low-grade state secrets in a world in which, increasingly, everything having to do with the state is becoming a secret). If you are a CIA employee who tortured no one but may have given information damaging to the reputation of the national security state in this case about a botched effort to undermine the Iranian nuclear program to a journalist, watch out. You are likely, as in the case of Jeffrey Sterling, to find yourself in a court of law. And if you happen to be a journalist like James Risen who may have received that information, you are likely to be hit by a Justice Department subpoena attempting to force you to reveal your source, under threat of imprisonment for contempt of court. If you are a private in the U.S. military with access to a computer with low-level classified material from the Pentagons wars and the State Departments activities on it, if youve seen something of the grim reality of what the national security state looks like when superimposed on Iraq, and if you decide to shine some light on that world, as Bradley Manning did, theyll toss you into prison and throw away the key. Youll be accused of having blood on your hands and tried, again under the Espionage Act, by those who actually have blood on their hands and are beyond all accountability. When it comes to acts of state today, there is only one law: dont pull up the curtain on the doings of any aspect of our spreading National Security Complex or the imperial executive that goes with it. As CIA Director Leon Panetta put it in addressing his employees over leaks about the operation to kill bin Laden, Disclosure of classified information to anyone not cleared for it reporters, friends, colleagues in the private sector or other agencies, former Agency officers does tremendous damage to our work. At worst, leaks endanger lives Unauthorized disclosure of those details not only violates the law, it seriously undermines our capability to do our job. And when someone in Congress actually moves to preserve some aspect of older notions of American privacy (versus American secrecy), as Senator Rand Paul did recently in reference to the Patriot Act, he is promptly smeared as potentially giving terrorists the opportunity to plot attacks against our country, undetected. Enhanced Legal Techniques Here is the reality of post-legal America: since the attacks of September 11, 2001, the National Security Complex has engorged itself on American fears and grown at a remarkable pace. According to Top Secret America, a Washington Post series written in mid-2010, 854,000 people have top secret security clearances, 33 building complexes for top-secret intelligence work are under construction or have been built since September 2001 51 federal organizations and military commands, operating in 15 U.S. cities, track the flow of money to and from terrorist networks [and] some 1,271 government organizations and 1,931 private companies work on programs related to counterterrorism, homeland security, and intelligence in about 10,000 locations across the United States. Just stop a moment to take that in. And then let this sink in as well: whatever any one of those employees does inside that national security world, no matter how illegal the act, its a double-your-money bet that he or she will never be prosecuted for it (unless it happens to involve letting Americans know something about just how they are being protected). Consider what it means to have a U.S. Intelligence Community (as it likes to call itself) made up of 17 different agencies
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and organizations, a total that doesnt even include all the smaller intelligence offices in the National Security Complex, which for almost 10 years proved incapable of locating its global enemy number one. Yet, as everyone now agrees, that man was living in something like plain sight, exchanging messages with and seeing colleagues in a military and resort town near Islamabad, the Pakistani capital. And what does it mean that, when he was finally killed, it was celebrated as a vast intelligence victory? The Intelligence Community with its $80 billion-plus budget, the National Security Complex, including the Pentagon and that post-9/11 creation, the Department of Homeland Security, with its $1.2 trillion-plus budget, and the imperial executive have thrived in these years. They have all expanded their powers and prerogatives based largely on the claim that they are protecting the American people from potential harm from terrorists out to destroy our world. Above all, however, they seem to have honed a single skill: the ability to protect themselves, as well as the lobbyists and corporate entities that feed off them. They have increased their funds and powers, even as they enveloped their institutions in a penumbra of secrecy. The power of this complex of institutions is still on the rise, even as the power and wealth of the country it protects is visibly in decline. Now, consider again the question Is it legal? When it comes to any act of the National Security Complex, its obviously inapplicable in a land where the rule of law no longer applies to everyone. If you are a ordinary citizen, of course, it applies to you, but not if you are part of the state apparatus that officially protects you. The institutional momentum behind this development is simple enough to demonstrate: it hardly mattered that, after George W. Bush took off those gloves, the next president elected was a former constitutional law professor. Think of the National Security Complex as the King George of the present moment. In the areas that matter to that complex, Congress has ever less power and, as in the case of the war in Libya or the Patriot Act, is ever more ready to cede what power it has left. So democracy? The peoples representatives? How quaint in a world in which our real rulers are unelected, shielded by secrecy, and supported by a carefully nurtured, almost religious attitude toward security and the U.S. military. The National Security Complex has access to us, to our lives and communications, though we have next to no access to it. It has, in reserve, those enhanced interrogation techniques and when trouble looms, a set of what might be called enhanced legal techniques as well. It has the ability to make war at will (or whim). It has a growing post-9/11 secret army cocooned inside the military: 20,000 or more troops in special operations outfits like the SEAL team that took down bin Laden, also enveloped in secrecy. In addition, it has the CIA and a fleet of armed drone aircraft ready to conduct its wars and operations globally in semi-secrecy and without the permission or oversight of the American people or their representatives. And war, of course, is the ultimate aphrodisiac for the powerful. Theoretically, the National Security Complex exists only to protect you. Its every act is done in the name of making you safer, even if the idea of safety and protection doesnt extend to your job, your foreclosed home, or aid in disastrous times. Welcome to post-legal America. Its time to stop wondering whether its acts are illegal and start asking: Do you really want to be this safe?
Tom Engelhardt, co-founder of the American Empire Project, runs the Nation Institute's TomDispatch.com. His latest book, "The United States of Fear" (Haymarket Books), has just been published.
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Jane Mayer - The New Yorker

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