• A torture memo writer refused to comply with a warning about criminal risks—and exposes the truth about the policies. • Karl Rove and Dick Cheney are convinced that Bush-era torture policy is a promising political product for a party down on its luck. • Donald Rumsfeld gave step-by-step directions for techniques used at Abu Ghraib. • Torture techniques originated from the White House shortly after 9/11—long before they were arguably needed on the battlefield. • Torture was used by Cheney and Rumsfeld to find justification for the invasion of Iraq. • Jay Bybee was confirmed to a lifetime appointment as all eyes were on Colin Powell’s speech to the U.N. about Iraq’s weapons of mass destruction program.
In the space of a week, the torture debate in America has been suddenly transformed. The Bush administration left office resting its case on the claim it did not torture. The gruesome photographs from Abu Ghraib, it had said, were the product of “a few bad apples” and not of government policy. But the release of a series of grim documents has laid waste to this defense. The Senate Armed Services Committee’s report—adopted with the support of leading Republican Senators John McCain, John Warner, and Lindsey Graham—has demonstrated step-by-step how abuses on the ground in Iraq and Afghanistan had their genesis in policy choices made at the pinnacle of the Bush administration. A set of four Justice Department Office of Legal Counsel memoranda from the Bush era has provided a stomach-turning legal justification of the application of specific torture techniques, including waterboarding.
Rove and Cheney are convinced that Bush-era torture policy is a promising political product for a party down on its luck. Its success on the political stage is just one more 9/11-style attack away.
As public and congressional calls for the appointment of a prosecutor and the creation of a truth commission have proliferated, President Barack Obama stepped in quickly to try to turn down the heat. A commission would not be helpful, he argues, and he has made plain his aversion to any form of criminal-law accountability. Republicans, meanwhile, bristle with anger as they attempt to defend against the flood of new information. But, in the end, Obama’s assumption that the torture debate has run its course and that the country can now “move on,” as conservative pundit Peggy Noonan urged, may rest in some serious naïveté: Karl Rove and Dick Cheney have different ideas. They’re convinced that Bush-era torture policy is a promising political product for a party down on its luck. Its success on the political stage is just one more 9/11-style attack away.
The latest disclosures can best be grouped in terms of the destruction of a series of long-enduring myths and the emergence of some new truths.
The Broken Myths
1. Torture was connected to some “rotten apples,” mostly enlisted personnel from rural Appalachia who were improperly supervised.
The Senate Armed Services Committee meticulously documents the abuses that were chronicled at Abu Ghraib, Bagram Air Base, and other sites and links them directly to techniques that were approved by Secretary of Defense Donald Rumsfeld and other senior officials in the Bush administration. Even in the case of Abu Ghraib, it shows step-by-step how directions given by Rumsfeld that the harsh techniques he adopted for Guantánamo be imported to Iraq, specifically for use on high-value detainees at the Abu Ghraib facility. Among the 232-page report’s conclusions: “The abuse of detainees in U.S. custody cannot simply be attributed to the actions of ‘a few bad apples’ acting on their own. The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.”
2. The torture techniques were derived as a last resort, only after other techniques had failed and that interrogators in the field pushed for their use.
The report shows, however, that the effort to identify and seek authority to use harsh new techniques started shortly after 9/11—that is, in 2001, well before there were any prisoners on whom they could be used. It also shows that the effort had its origin in the White House, specifically in the office of Vice President Cheney and involved a series of people who had Cheney’s confidence.
Conversely, the report (and other documents emerging since its release) shows that interrogators in the field raised sharp objections to the use of the techniques and steadily questioned their efficacy. The team dealing with one prisoner, for instance, voiced the view that he had already furnished all the evidence he was likely to produce and that further waterboarding would be pointless. Nameless “higher ups” overrode their judgment. That group might well include Cheney, who is known to have maintained a sharp interest in this particular detainee and kept on his desk a file marked “detainees” in which he collected data related to the use of torture. The Senate report documents a series of military officers who raised objections against the use of torture and insisted that their opposition be recorded. And today a further report has emerged from July 2002 (just as the OLC memos were being commissioned), in which the military’s Joint Personnel Recovery Agency expressly referred to the techniques, which were being reverse engineered from the SERE program (that JPRA oversaw), as “torture” and insisted that, if used, they would not produce reliable intelligence.
3. Bush lawyers may have made “honest mistakes” in their legal analysis owing to the extreme pressure that existed in the immediate wake of 9/11, in which they were pressed quickly to give opinions before matters could be fully evaluated.
One of Bush’s OLC chiefs, Jack Goldsmith, makes the argument, now accepted as a mantra-like defense for the Bush-era torture lawyers, that tremendous pressure and short deadlines were to blame for their failure to properly assess the law. The torture memoranda gave seriously faulty analysis of the law, Goldsmith claims, because of this pressure-cooker environment. We should all be prepared to excuse their lapses for this reason. Goldsmith is not the most objective analyst of the question, and his adamant insistence that he was divorced from the process of giving a green light to torture appears less persuasive as time passes. But the writings of the torture memo writers, particularly of John Yoo, look suspiciously like their academic writing, in which they sought to expand presidential power and authority at the expense of the rights of the other branches. It seems more plausible to conclude just the opposite of Goldsmith’s claims—namely, that they seized upon the crisis that arose in the wake of 9/11 as an opportunity in which they could realize their ideas about limitless presidential powers in wartime.
The Emerging Reality
1. The impulse to torture had a clear motivation: Cheney and Rumsfeld were increasingly desperate to find evidence that would support their decision to invade and occupy Iraq.
The push for application of torture techniques occurred as the Bush administration scrambled to come up with evidence to support its claims that Iraqi dictator Saddam Hussein had links to al Qaeda or was pursuing the development of weapons of mass destruction. Two major spikes in the use of the harshest techniques occurred in the weeks just before the Iraq invasion and the couple of months after the occupation of Iraq had begun. The first spike coincides with a period of difficulty with America’s principal ally, Britain, shortly following the famous Washington meeting between President Bush and Prime Minister Tony Blair in which the latter expressed concern about the lack of evidence supporting claims about a WMD program. Blair had been informed by his attorney general, Lord Peter Goldsmith, that the legal case for invading Iraq was exceedingly tenuous and badly needed to be bolstered with evidence showing an imminent threat coming out of Saddam Hussein’s Iraq. Also in this period, Vice President Cheney was doing his best to make this case by talking up evidence that proved specious—including reports of a meeting in Prague between an al Qaeda figure and an Iraqi diplomat.
The new documents make plain that interrogators using the new harsh techniques, including waterboarding, were pushing their subjects for information that would justify the Iraq war. For instance, Major Paul Burney, a medical professional attached to interrogation efforts at Guantánamo, told investigators that “we were there a large part of the time. We were focused on trying to establish a link between al Qaeda and Iraq and we were not being successful in establishing a link between al Qaeda and Iraq. The more frustrated people got in not being able to establish this link… there was more and more pressure to resort to measures that might produce more immediate results.” Numerous other sources involved in the interrogation effort recorded the same intense pressure to secure “results” that would justify a decision that had already been taken in Washington to invade Iraq.
In the end, Secretary of State Colin Powell was sent to the United Nations to make the case for an invasion of Iraq. The crown jewel of his evidentiary case turned on claims supplied by Ibn al-Shaykh Al-Libi that Saddam Hussein had trained al Qaeda operatives in the use of chemical weapons. Al-Libi had been tortured using the new techniques to secure this evidence. It was subsequently determined to be false—offered up by Al-Libi to escape the torments to which he was subjected with the full understanding that this was what his interrogators wanted to hear. By curious coincidence, as Powell delivered his speech to the U.N. Security Council, a Judiciary Committee hearing room emptied out, and the nominee then under consideration got a free pass to confirmation to a lifetime appointment on the federal bench. His name was Jay Bybee, and more than a year later, the public would learn that he had been a principal author of the torture memoranda.
The new reports make clear that torture was used to secure information to justify the invasion of Iraq, but—just as experts from the military and the FBI warned—the information proved false. America’s credibility on the international stage was seriously damaged as a result.
2. The torture trail started and ended in the White House.
The Bush administration went to great lengths to fabricate a narrative under which it agreed to demands from interrogators on the ground to allow the use of harsher methods, effectively “removing the shackles” on their interaction with prisoners. But the Senate Armed Services Committee report shows that the effort to introduce these techniques dates from 2001, before there were any prisoners. It also shows that these techniques emanated from the White House and specifically from the office of Vice President Cheney. Finally, it documents a protocol that was in effect governing the use of the techniques. Interrogators would propose a full program of torture techniques to be applied to an individual prisoner. This proposal would be vetted and approved by higher ups in the CIA (including the senior CIA officials who, not coincidentally, vehemently opposed disclosure of information surrounding their own engagement), and then it would go to the White House, where discussions occurred in the National Security Council. Formal signoff occurred by National Security Adviser Condoleezza Rice, involving her lawyer, John Bellinger. President Bush and Vice President Cheney are also recorded as having been informed and having approved its use. If the torture story is therefore a tale involving a “handful of bad apples,” then, the “bad apples” were sitting at the very top of the government.
3. Experts advised the administration lawyers that their opinions on torture were wrong and possibly criminal in nature and the lawyers attempted to destroy evidence of this fact.
Contrary to the uninformed assertion of Washington Post columnist David Broder that the “memos on torture represented a deliberate, and internally well-debated, policy decision, made in the proper places,” the newly released documents are filled with evidence that military law experts and others repeatedly warned the Bush administration, and particularly its lawyers, that the techniques being introduced constituted torture and that torture was a federal crime, punishable with penalties up to capital punishment in cases in which death occurred (and it did).
In addition, a senior military lawyer tells me that he directly confronted one of the torture memo writers advising him that the techniques proposed would be viewed by most experts as criminal in nature. He insisted that the memo be rewritten to reflect this risk. But the memo writer refused, he states. Phillip Zelikow, a senior counselor to Condoleezza Rice at the State Department, also described a memorandum he wrote warning of risks associated with the torture memoranda. He explained last week that an extraordinary effort was launched by the Bush White House to round up and destroy all copies of his memo. Prosecutors would probably characterize all of this as reflecting mens rea—a state of guilty mind—a realization by the torture memo writers that they were engaged in a criminal act.
Why did the memo writers issue their opinions in the form that they did without signaling the risks of criminal law involved in the scheme that the White House was implementing? It’s likely that they were acting under instructions to issue “clean opinions,” which would make it easier for the White House to act and provide more effective insulation from criminal prosecution to those who received the memos.
The new disclosures have transformed the parameters of the debate. The fallback position urged with increasing vigor by Dick Cheney and Karl Rove is simple and includes both offensive and defensive elements. The critical top note is that torture works and keeps America safe. Cheney repeats this claim at every public appearance. He claims that these techniques yielded information that allowed the U.S. to thwart attacks. But Cheney has been extremely slippery about the details of these claims.
Cheney has also filed papers with the National Archives seeking the declassification and disclosure of two CIA reports, which he notes are in a file from his office marked “Detainees.” Curiously, neither report dates from the period of heavy use of torture techniques like waterboarding—they are from a subsequent period in which information gained is probably being crunched or evaluated in an effort to prove that the application of torture yielded something useful. Critics object to Cheney’s request, but they don’t object to disclosure of information about the fruits of the program. They argue that Cheney cannot be allowed to cherry-pick the evidence as he did with intelligence relating to the Iraq War. Instead, they argue, there should be a comprehensive study of the question that reaches some results—perhaps best in the form of a commission of inquiry like the one that the congressional Judiciary Committee chairmen, John Conyers and Patrick Leahy, have proposed.
Rove’s counterattack takes a different form. He argues, using formulations that instantly reverberated though the airwaves as dozens of Republican commentators took them up, that any effort at accountability would be a primitive act of retribution. Appearing on Sean Hannity’s show on Fox News, Rove invoked the image of “Latin American colonels in mirrored sunglasses,” claiming that any effort to investigate breaches of law would be a “criminalization of an honest policy dispute” that would undermine the fabric of American democracy.
President Obama and his advisers have reacted to these disclosures through a series of unconvincing gyrations. It is clear that Obama’s principal concern throughout this process has been that the controversy surrounding torture will prove a distraction that might encumber his efforts to push through an ambitious agenda including financial-industry reform, bailouts, health-care reform, and an array of foreign-policy initiatives. His steps have been ham-handed. On the question of possible prosecutions, Obama went to the CIA to deliver public assurances that no intelligence officers who relied on government legal opinions would be investigated or prosecuted for what they did. Shortly thereafter, his chief of staff, Rahm Emanuel and press secretary, Robert Gibbs, announced that there would be no prosecution of legal memo writers or policymakers either—steps violating clear-cut rules about the involvement of White House political figures in criminal-justice matters. The White House was forced to pull back the next day, insisting that the Justice Department would handle these questions.
Obama insists America must “look forward.” He views the torture question as resolved by a series of orders he issued coming into office. But Cheney and Rove suggest another idea. It’s clear that in their view America is just one more 9/11 attack away from a transformation in which their use of the “dark arts” will again carry popular endorsement and provide a powerful wedge issue to use against Obama. Obama’s optimism about closure on the torture issue may therefore be seriously misplaced.
Scott Horton is a law professor and writer on legal and national-security affairs for Harper's magazine and The American Lawyer, among other publications.