Torture: No One Said No

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New York Review of Books

Torture: No One Said No

From left: Donald Rumsfeld, Dick Cheney, George W. Bush, Condoleeza Rice, and Colin Powell. (Photo: AP/File)

Who bears ultimate responsibility for the US torture program? The report by the Senate Select Committee on Intelligence, released in December, told us much about how the program was implemented and carried out: it was fundamentally ill-conceived, poorly managed, and led to grievous abuses of basic human rights with little or no accountability. Yet the Senate report focused almost exclusively on the CIA, and despite intense debate about it in Washington and in the press, remarkably little was said about the responsibility of the Bush administration itself. In this regard, a separate, largely overlooked trove of newly declassified documents, mostly internal CIA records of correspondence with White House officials and lawyers, is particularly revealing.

The documents, which were uploaded to a mysterious website by the name of ciasavedlives.com, provide dramatic new details about the direct involvement of senior Bush administration officials in the CIA’s wrongs. They were apparently declassified by the CIA at the request of former director George Tenet, who presumably hoped they would help defend his record as director during the agency’s descent into torture. But they hardly exculpate the agency. Rather, they show an extended conspiracy between the CIA and administration officials that played out for the duration of the program, in which the agency leadership repeatedly asked for approval for patently illegal interrogation methods, and repeatedly got “yes” for an answer. This is the record of an agency with a guilty conscience, and of multiple high-level officials and lawyers eager to enable it at every turn.

Even though the program had been approved at its outset by National Security Adviser Condoleezza Rice in July 2002 and by Attorney General John Ashcroft in August 2002, the slightest hint that the Bush administration might actually be committed to avoiding torture or inhumane treatment caused the CIA to panic. Bush administration lawyers had determined that the methods the agency was using to induce detainees to talk—including waterboarding, extended sleep deprivation, slamming into walls, and painful stress positions—were not torture and did not violate the prohibition on cruel, inhuman, and degrading treatment. But the agency acted as if it couldn’t quite believe it. It kept returning to the White House and the DOJ asking them to say, yet again, that the agency could do what it had already been told it could do.

Again and again, the agency’s concerns were triggered by official statements by the Bush administration suggesting that the US does not mistreat its prisoners. The first concerns arose in late 2002, after the program had been fully approved. Scott Muller, then general counsel of the CIA, worried that the program might conflict with a February 2002 memo from President Bush entitled “Humane Treatment of al Qaeda and Taliban Detainees.” In that memo, Bush had proclaimed that the Geneva Conventions, which require humane treatment of all wartime detainees, did not apply to al-Qaeda or the Taliban, but stated that “as a matter of policy, the United States Armed Forces shall continue to treat detainees humanely.”

In December 2002, Muller twice asked John Bellinger, counsel to National Security Adviser Rice, whether this posed a problem for the CIA’s continuing program. Bellinger twice told Muller not to worry, assuring him that the CIA’s techniques were “consistent with the President’s direction as reflected in the February Memo,” and urging him to speak to Justice Department lawyer John Yoo about it. Yoo, who with Jay Bybee wrote the initial Justice Department memo approving of the CIA’s interrogation tactics in August 2002, concurred, and told Muller that the February memo “had been deliberately limited to be binding only on ‘the Armed Forces’ which did not include the CIA.”

Early the next year, in January 2003, Muller again raised the issue in a meeting with four top legal officials for the Bush administration—White House Counsel Alberto Gonzales, Counsel to the Vice-President David Addington, Defense Department General Counsel Jim Haynes, and Yoo. Again, Addington and Gonzales reassured Muller, confirming that the commitment to humane treatment did not apply to the CIA. Tellingly, no one suggested that the CIA’s tactics were actually “humane”; rather, they insisted that only the Armed Forces, and not the CIA, were bound to treat detainees humanely.

All of these reassurances were not enough, however. The CIA came back for more in July 2003. This time its anxiety was the result of three events in the last week of June 2003. DOD General Counsel Haynes had written a letter to Senator Pat Leahy, stating that “United States policy is to treat all detainees and conduct all interrogations, wherever they may occur, in a manner consistent with” the US’s international treaty commitment to prevent “cruel, inhuman, and degrading treatment.” The administration had issued a press release on International Day in Support of Victims of Torture that condemned “cruel” treatment of detainees. And a White House press officer had said that US government detainees were being treated “humanely.” Tenet promptly wrote a memo to Rice asking the administration to reaffirm its commitment to the CIA interrogation program in light of, or more properly, in spite of, these statements.

The implicit predicate of Tenet’s request is that what the CIA was doing was in fact cruel and inhumane, and therefore not in keeping with the administration’s representations. But in a meeting on July 29, 2003, attended by Tenet, Muller, Vice President Cheney, Rice, Ashcroft, Gonzales, Bellinger, and Justice Department lawyer Patrick Philbin, the CIA was again told not to worry. Vice President Cheney was apparently aghast, not at the program, but at the press. He “asked how the press could have gotten such an impression” that the US had pledged not to use “stress and duress” techniques. Bellinger blamed the press office, and “explained that the [White House] press officer had ‘gone off script’ and had mistakenly gone back to ‘old’ talking points.” No one blamed the CIA for using cruel and inhumane tactics. The problem lay elsewhere.

According to the contemporaneous record of the meeting released by the CIA, Tenet said that US officials should stop reassuring the press that American interrogation practices “were ‘humane’ as that term is easily susceptible to misinterpretation.” Bellinger agreed to get that message to the press office right away. Apparently, he had already told them to avoid any statements about “humane” treatment several months earlier, but they had not followed his advice. What needed reform, everyone seemed to agree, was not the CIA’s conduct, but the press office’s statements. At the meeting’s close, the CIA had received yet another green light from top administration officials to continue to treat its detainees cruelly and inhumanely.

The July 2003 meeting was enough to satisfy the CIA for another eight months. But when photographs of prisoner abuse at Abu Ghraib were publically released in April 2004, the CIA got nervous again. This time, its focus was not on whether its actions were approved—they still were—but on the reasoning employed to approve them. The Justice Department had opined that the practices did not violate the prohibition on cruel, inhuman, and degrading treatment, or the related constitutional prohibition on conduct that “shocks the conscience,” because those rules simply did not apply to foreign nationals held outside the United States (at so-called black sites). The CIA wanted more reassurance; they wanted the Justice Department to say that the tactics would not “shock the conscience” or be “cruel, inhuman or degrading” even if those prohibitions applied. In late May 2004, Jack Goldsmith—the Harvard Law professor who had succeeded Jay Baybee as head of the Justice Department’s Office of Legal Counsel in November 2003—told the CIA that the Office of Legal Counsel had not yet decided those questions, because it had concluded that the normal constitutional rules were inapplicable to CIA detainees held beyond US borders; Tenet was sufficiently skittish that in May 2004 he suspended the program altogether until he got renewed approval.

Once again, Tenet’s actions suggest his awareness that, even though they had been repeatedly approved, the CIA’s interrogation techniques were likely illegal. Why suspend a program you think is useful and, as CIA officials put it, “saving lives,” if you have no doubt of its legality? The suspension was a formality, however, as the agency was not interrogating any suspected terrorist detainees at the time. And when, about six weeks later, the CIA did capture someone it wanted to interrogate, the CIA requested and received from Ashcroft, approval for all the “enhanced” tactics except waterboarding. (At the time, waterboarding was still under review after an Inspector General investigation had revealed abuse of the technique.)

At every turn, the CIA got the reassurances it wanted. The Justice Department’s Office of Legal Counsel—under the leadership of several different lawyers—wrote a series of memos between 2002 and 2007 repeatedly confirming the tactics’ legality, each more tenuous than the last. First it found they weren’t torture; then that they were not cruel, inhuman, or degrading, and did not “shock the conscience”; and finally, that they did not even violate the Geneva Convention requirement of “humane” treatment. (Under that last conclusion, foreign governments would be free to use these same coercive tactics against US soldiers.)

Moreover, contrary to the implication of the executive summary of the Senate report, the Justice Department was not hoodwinked by the CIA. One document reports that Ashcroft responded to a report that Khalid Sheikh Mohammed had been waterboarded 119 times by reaffirming that this was fully in keeping with the Justice Department’s authorizations. The Justice Department knew also that the tactics were used in combination, and, after a 2004 CIA Inspector General report, that CIA interrogators had used a variety of unapproved methods, including threatening detainees with a gun and an electric drill. With this set of multiple and overlapping reassurances in hand, the CIA could be confident that it would never be subject to criminal prosecution for its actions.

The newly declassified CIA documents depict an agency whose leadership knew that what it was doing was wrong, and therefore was never fully confident that the authorizations it received from the executive branch were enough—even though they came from the president, the vice-president, the attorney general, and the national security adviser, as well as from senior lawyers in all of those offices. And for good reason: no one could really believe that these tactics were not torture, let alone that they were not cruel or inhumane.

But the exchanges recounted in the CIA documents also reveal an even more telling fact. The agency comes across as so skittish about the program that had anyone had the temerity to say no, the program almost certainly would have halted. If a mere “off-script” statement by a deputy press officer could prompt a formal demand for reauthorization, and if a lawyer’s mere delay in resolving a legal issue that was not even necessary to decide could cause a suspension of the program, just imagine if any of the lawyers involved had insisted that the program was illegal. But as far as the record reflects, no one said no—not Counsel to the National Security Adviser John Bellinger, not Counsel to the Vice-President David Addington, not White House Counsel Alberto Gonzales, and not Attorney General John Ashcroft or a whole series of Justice Department lawyers, including John Yoo, Jay Bybee, Patrick Philbin, Jack Goldsmith, Daniel Levin, and Steven Bradbury.

Among these figures, Goldsmith at least raised questions. In June 2004, after he had become head of the OLC, Goldsmith rescinded the initial August 2002 memo by John Yoo and Jay Bybee authorizing the program, which had been leaked to The Washington Post; Goldsmith then resigned in July 2004, before work was completed on a new memo. But even Goldsmith never actually said that any of the CIA’s tactics were illegal. His concerns were principally that the memo’s reasoning was more expansive than it needed to be. Before he left office he confirmed to the CIA that all the enhanced interrogation practices other than waterboarding, which was then still under review, were legal. In December 2004, Goldsmith’s successor, Daniel Levin, issued a memo that expressly approved all previously approved techniques, including waterboarding.

Bellinger, to his credit, also raised concerns, but only belatedly. In 2007, when he had become State Department Legal Adviser, Bellinger objected to a draft memo by the Justice Department opining that the tactics were “humane” under the Geneva Conventions—almost certainly the most indefensible of the many memos that the Justice Department wrote endorsing the program. But by then, the damage had been done, and the program was largely over. In any case, Justice Department lawyer Steven Bradbury rejected Bellinger’s concerns, specifically noting that the criticisms were at odds with Bellinger’s own earlier support as counsel to the National Security Adviser.

In the end, what it took to kill the CIA’s detention and interrogation program was the election of Barack Obama; he prohibited torture and closed the CIA’s secret prisons on his second day in office.

David Cole

David Cole, The Nation's legal affairs correspondent, is the author, most recently, of The Torture Memos: Rationalizing the Unthinkable (New Press).

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