Published on Friday, December 8, 2006 by TomDispatch.com
Impunity and Immunity: The Bush Administration Enters the Confessional
by Karen Greenberg
Confession, the time-honored, soul-soothing last resort for those caught in error, may not survive the Bush administration. It has, after all, long made a mockery of such revelations by manufacturing an entire lexicon of coercive techniques to elicit often non-existent "truths" that would justify its detention policies. And yet, without being coerced in any way, administration officials have been confessing continually these past years -- in documents that may someday play a part in their own confrontation with justice.
The Bush administration trail of confessions can be found in the most unlikely of places -- the very memos and policy statements in which its officials were redefining reality in their search for the perfect (and perfectly grim) extractive methods that would give them the detainee confessions they so eagerly sought. These were the very documents that led first to Gitmo, then to Abu Ghraib, and finally deep into the hidden universe of pain that was their global network of secret prisons.
Strangely enough, the administration confessional was open for business within weeks of the attacks of September 11th, 2001. It could be found wrapped in persistent assertions of immunity, assertions that none of their acts to come could ever be brought before the bar of justice or the oversight of anyone. The first of these documents was issued on September 25th, 2001. Deputy Assistant Attorney General John Yoo, writing for the Office of Legal Counsel, laid out the reasons for the President of the United States to assume broad executive powers in the war on terror. The last footnote of the memo declared, "In the exercise of his plenary power to use military force, the President's decisions are for him alone and are unreviewable."
This notion of unreviewable behavior, then still buried in the land of footnotes, has characterized the administration's general stance on its war on terror policies. On January 9th, 2002, just as Guantanamo opened for business as a detention facility supposedly beyond the review of American courts, John Yoo and fellow Office of Legal Counsel member Robert Delahunty explained why a breach with international law would not constitute a crime for the Bush administration. In their secret memo, the United States, through the Justice Department, was to exempt itself ahead of time from the laws it was about to break. In essence, it was to give itself the equivalent of a hall pass for future illegal activities in the new policies and practices of detention.
The memo contorted the Geneva Conventions into a pretzel of excuses for America's impunity on the matter of war crimes; it offered tortured reasoning about the inapplicability of Common Article Three of the Conventions -- guaranteeing humane treatment during armed conflict to those individuals who are not engaged in battle (non-combatants, prisoners-of-war, those who have lain down their arms, etc.) -- to the conflicts then at hand. Thus, the Taliban was redefined not as a state but as a failed state; Al Qaeda became a non-state actor; the Conventions, they now claimed, were created largely for civil wars, not for "other types of internal armed conflict." As the memo asserted over and over again, "As a constitutional matter, the President has the power to consider performance of some or all of the obligations of the United States under the Conventions suspended."
In this way, any captives from our Afghan War were redefined as possible subjects for utterly lawless behavior, while the President was given the right not to follow international law. They put the matter this way: "The President could justifiably exercise his constitutional authority over treaties by regarding the Geneva Conventions as suspended in relation to Afghanistan."
Foreshadowing the infamous "torture memo" of 2002 in which the same group of advisors redefined torture, nearly casting it out of legal existence, this early opinion stated that American officials could only be held accountable in the following circumstances: "causing great suffering or serious bodily injury to POWs, killing or torturing them, depriving them of access to a fair trial, or forcing them to serve in the Armed Forces." The memo concluded with what would become the legal mantra of the Bush administration -- the assertion of immunity, stating that "customary international law has no binding legal effect on either the President or the military because it is not federal law."
As Guantanamo received its first planeloads of prisoners, Alberto Gonzales, then counsel to the President, and William J. Haynes, counsel to the Department of Defense, took the idea of administration immunity for war crimes to a new level. They used their high offices to clear the way for the substandard treatment of detainees. Trusted with the justice and safety of the nation, they both concurred with their colleagues at the Office of Legal Counsel: "We conclude that customary international law does not bind the President or the US Armed Forces in their decisions concerning the detention conditions of al Qaeda and Taliban prisoners."
Though confidently proposing ways that any future prosecution for war crimes could be avoided, these memo-style declarations of immunity proved insufficiently comforting to an administration that had, by its own implicit admission, chosen to take a giant step into realms outside anyone's previous definition of the law.
They soon grasped a simple point: Declaring themselves immune was one thing; ensuring immunity, quite another. To fully protect their clients -- the President of the United States as well as high Pentagon and CIA officials -- administration lawyers confronted the potential problem of domestic legal constraints on the mistreatment of detainees.
Gonzales tried to strengthen the assurances of Bush's legal team by concluding that declaring exemption from the Geneva Conventions in turn "substantially reduces the threat of domestic criminal prosecution." Attorney General John Ashcroft concluded that the President's determination in detention matters "was fully discretionary and will not be reviewed by the federal courts." Ashcroft made the stakes clear: If the prisoners in U.S. hands were considered prisoners of war, American law would "not accord American officials the same protection from legal consequences." Thus it became doubly crucial to redefine them not as POWs but as "enemy combatants."
To the Bush administration, words, it seemed, were everything. And if the laws, domestic and international, depended upon definitions, then the definitions of words would simply have to change across the board. So it was unavoidable that the first casualty in the President's Global War on Terror, which also became his global war for immunity, would be language itself. The captives who arrived at Gitmo were not to be called prisoners, nor was the facility itself to be referred to as a prison; it was a "detention facility" and the inmates were "detainees" and "enemy combatants." If other words were used -- prison, prisoner, prisoner-of-war -- then high officials and members of the Armed Forces would not, as Ashcroft explained, be immune from the law.
In the same vein, torture was to be banned from the premises (but only as a word); instead coercive techniques that for centuries plainly came under the rubric of torture were relabeled "counter-resistant coercive interrogation techniques." The infamous "torture memo" of August, 2002 drew narrow parameters around the definition of torture, which was now to be limited to "serious physical injury such as death." Repeatedly, the memo asserted that other methods "do not amount to torture." And it essentially turned the very definition of torture over to the torturer. Abetted here as elsewhere by the media, the Bush administration also successfully de-legitimized the statements of the detainees themselves, consigning them to the trash heap of history -- all of them were the accounts of well-drilled liars, false accusations inspired by Al Qaeda training manuals.
And yet, even reclassifying words and redrawing the lines of the law did not sufficiently assuage their fears -- and here's where the hidden confessional element of all this crept into play. They were clearly hounded by what can only be called a kind of lurking institutional conscience, a sense that the acts already being committed in their name (or future ones) might someday be declared illegal under laws and agreements they were trying unilaterally to abrogate, resulting in prosecutions.
So, to ensure that their legal reasoning and linguistic demands would hold sway in the policy world, Bush administration officials found they had to go even further. They determined to find a way to control the environment of detention as completely as possible. First, of course, they chose an American base in Cuba to be the jewel in the crown of the detention system they were putting in place globally because it seemed to lie "in legal limbo" outside any international or domestic legal system. Second, "ghost prisons," some in facilities borrowed from allies known to employ torture themselves, were established so that the techniques for extracting confessions, even though no longer defined as torture, could not be seen or known about. Third, just to be sure about things, the United States launched a campaign to free itself from any future international prosecution for war crimes under the auspices of the new International Criminal Court (ICC). In return for money and services, after cases of remarkable diplomatic arm twisting, 102 countries agreed, one by one, to an American demand for immunity from future ICC prosecution.
Then, the Bush administration charged ahead, convinced that it had addressed its legal liabilities and given itself that eternal hall pass. In truth, however, it had been confessing all along, laying out a remarkable record of tacit admission to criminal activity. The administration had, for example, informed the military commanders at Gitmo that they should consider themselves to be "guided by the Geneva Conventions but not bound by them." At Guantanamo and Abu Ghraib, interrogation needs took precedence over matters of detention -- and it was all on the official record.
The administration's urge to claim immunity, which is, in essence, the confession of crimes about to be committed (or already committed), has not waned over the years. If anything, it has gotten stronger. Only recently, for instance, John Yoo, now a law professor at the University of California, Berkeley, insisted once again that extralegal measures were necessary in the war on terror. "Is a second [9/11] attack," he wrote, "an acceptable price to pay for rejecting coercive interrogation?" He then suggested, among other ways of avoiding prosecution for such acts, a possibility that may loom ever larger before George W. Bush's second term in office is over -- the issuing of presidential pardons.
The President has weighed in aggressively on the issue as well, publicly embracing the idea of immunity. Twice, in his not-to-be-overlooked September 6th speech on the existence of the CIA "program" for "high-value detainees," the President insisted upon immunity for those involved in detention and interrogation. In this speech, in which he announced his intention to submit the Military Commissions Bill to Congress, he explained, "[S]ome believe our military and intelligence personnel involved in capturing and questioning terrorists could now be at risk of prosecution under the War Crimes Act -- simply for doing their jobs in a thorough and professional way. This," he declared, "is unacceptable." Moments later he reiterated his firm opposition to any such prosecutions. "I'm asking that Congress make it clear that captured terrorists cannot use the Geneva Conventions as a basis to sue our personnel in courts -- in U.S. courts. The men and women who protect us should not have to fear lawsuits filed by terrorists because they're doing their jobs."
What more could a prosecutor want than a trail of implicit confessions, consistent with one another, increasingly brazen over time, and leading right into the Oval Office? For five years now, the Bush administration has given itself an inviolable command: declare immunity for what you have done, what you are doing, and what you are about to do. When the President's Military Commission Bill did pass, its many astounding "reforms" actually codified immunity retroactively for a range of abuses against detainees.
To overlook the trail of confessions that is part and parcel of the administration's torture narrative is to perform an act of extraordinary rendition not just on the truth but also on the importance of confessions themselves. Professional interrogators, priests, psychiatrists, and others who deal with confession regularly say that people normally want to talk, that they want to tell you their story, that confession is a deep and satisfying part of all our lives.
In the case of the Bush administration, it is the documents themselves that seem to want to confess, that are bursting with the desire to talk, to tell the story of these last years of illegality. Americans, and the Congress they have just elected, should take heed. The time has come, after five years, to restore language, law, and accountability to the American ethos by insisting that declarations of immunity be seen for what they are: Confessions about actions that are both reviewable and unpardonable.
Karen J. Greenberg is the Executive Director of the Center for Law and Security at the NYU School of Law and is the co-editor of The Torture Papers: The Road to Abu Ghraib. She also edited The Torture Debate in America.
Copyright 2006 Karen Greenberg