Anatomy of Bush's Torture 'Paradigm'

The prose of the recently leaked report of the International Committee
of the Red Cross on torture seems colorless. It is at the same time
obscene - almost pornographic.

The 41-page ICRC report
depicts scenes of prisoners forced to remain naked for long periods,
sometimes in the presence of women, often with their hands shackled
over their heads in "stress positions" as they are left to soil
themselves.

The report's
images of sadism also include prisoners slammed against walls, locked
in tiny boxes, and strapped to a bench and subjected to the drowning
sensation of waterboarding.

How could it be that we Americans tolerate the kind of leaders who
would subject others to systematic torture - yes, that's what the
official report of the international body charged with monitoring the
Geneva agreements on the treatment of prisoners concludes - torture.

Over
the past week I have been asked to explain how this could have
happened; who authorized the torture in our name? The Red Cross report
lacks the earmarks of rogues or "rotten apples" at the bottom of some
barrel.

This is what I have been telling those who ask:

Rather
than Harry Truman's famous motto on his Oval Office desk, "The Buck
Stops Here," this was a case of "The Buck Starts Here." President
George W. Bush set the tone and created the framework, with strong
support from Vice President Dick Cheney and Defense Secretary Donald
Rumsfeld.

The first hints of
what was in store came from the President himself in the White House
bunker late on Sept. 11, 2001, at a meeting with his closest national
security advisers after his TV address to the nation about the
terrorist attacks that morning.

The
vengeful bunker mentality prevailing at that meeting comes through
clearly in the report of one of the participants, Richard Clarke in his
book, Against All Enemies. Describing the President as
confident, determined, forceful, Clarke provides the following account
of what President Bush said:

"We are at war.... Nothing else matters. ... Any barriers in your way, they're gone."

When,
later in the discussion, Secretary Rumsfeld noted that international
law allowed the use of force only to prevent future attacks and not for
retribution, Bush nearly bit his head off.

"No,"
the President yelled in the narrow conference room, "I don't care what
the international lawyers say, we are going to kick some ass."

'Taking the Gloves Off'

In
the weeks that followed, the air in Washington hung heavy with demons
of retribution. Afghanistan was invaded in October 2001, and during a
prisoner uprising on Nov. 25, a CIA officer was killed there.

A
young American citizen, John Walker Lindh, was discovered among the
prisoners in the area. There was not the slightest evidence that Lindh
had anything to do with the killing.

But
documents show that U.S. Joint Special Operations troops were told that
the office of the Defense Secretary's counsel (William J. Haynes II,
was Pentagon general counsel at the time) had authorized an Army
intelligence officer "to take the gloves off and ask whatever he
wanted" of Lindh.

Despite
urgent intervention by Justice Department ethics attorney Jesselyn
Radack, Lindh was not properly read his rights. Instead, the FBI agent
on the scene ad-libbed in an offhand way, "You have the right to an
attorney. But there are no attorneys here in Afghanistan."

Lindh
had been seriously wounded in the leg. Despite that, U.S. troops put a
hood over him, stripped him naked, duct-taped him to a stretcher for
days in an unheated and unlit shipping container, and threatened him
with death.

Parts of his
humiliating ordeal were captured on film (a practice that became
tragically familiar with the photos of Abu Ghraib).

In her book, Canary in the Coalmine: Blowing the Whistle in the Case of John Walker Lindh,
attorney Radack comments that official documents pertaining to this
case provide "the earliest known evidence that the Bush Administration
was willing to push the envelope on how far it could go to extract
information from suspected terrorists."

(Because
she protested, Radack was fired as Justice Department legal ethics
advisor, put under criminal investigation, and even added to the
"no-fly" list.)

End-Run Around Geneva

But the Bush administration was just getting started.

On
Jan. 18, 2002, White House Counsel Alberto Gonzales advised the
President that the Justice Department had issued a formal legal opinion
concluding that the Geneva Convention III on the Treatment of Prisoners
of War (GPW) does not apply with respect to al Qaeda.

Gonzales
added that he understood that Bush had "decided that GPW does not apply
and, accordingly, that al Qaeda and Taliban detainees are not prisoners
of war under the GPW."

On
Jan. 19, 2002, Defense Secretary Rumsfeld told combat commanders that
the President had "determined that al-Qaeda and Taliban individuals
under the control of the Department of Defense are not entitled to
prisoner of war status for purposes of the Geneva Conventions of 1949."

Secretary
of State Colin Powell asked the President to reconsider his decision
and to conclude, instead, that the GPW does apply to both al Qaeda and
the Taliban. But Powell's protest was couched in bureaucratic
politeness, rather than in anger and outrage. [See Consortiumnews.com's
"Cowardice in the Time of Torture."]

The
next step took the form of the fateful memorandum of Jan. 25, 2002,
signed by Alberto Gonzales but drafted by counsel to the Vice President
David Addington. That memo outlined for the President "the
ramifications of your decision and the Secretary's [Powell's] request
for reconsideration."

It
described a "new paradigm" that, the writers claimed "renders obsolete
Geneva's strict limitations on questioning of enemy prisoners, and
renders quaint some of its provisions."

Gonzales
and Addington urged the President to disregard Powell's misgivings and
move ahead. But they cloaked their argument in lawyerly language that
obscured what was to come.

The
lawyers argued that it was "appropriate" and "consistent with military
necessity" to waive Geneva regarding the treatment of al Qaeda and
Taliban detainees, but they inserted assurances that the prisoners
would be treated "humanely" and "in a manner consistent with the
principles of GPW."

Powell Rebuffed

Brushing
aside Powell's objections, President Bush adopted the
Gonzales/Addington language and signed a memorandum to that effect on
Feb. 7, 2002. The memo went to Vice President Cheney, Secretary of
State Powell, Defense Secretary Rumsfeld, Attorney General John
Ashcroft, Chief of Staff to the President Andrew Card, Director of
Central Intelligence George Tenet, Assistant to the President for
National Security Affairs Condoleezza Rice, and Joint Chiefs Chairman
Gen. Richard Myers.

The memo
amounted to an executive order, although it was not labeled as such. In
it, the President alludes fulsomely to Justice Department opinions and
recommendations, as well as "facts" supplied by the Defense Department.

Bush
then takes clear responsibility for the decision to spurn Geneva: "I
determine that common Article 3 of Geneva does not apply to either al
Qaeda or Taliban detainees. ... I determine that Taliban detainees ... do
not qualify as prisoners of war under Article 4 of Geneva ... and that al
Qaeda detainees also do not qualify as prisoners of war."

The
Feb. 7, 2002, memo bears the Orwellian title "Humane Treatment of al
Qaeda and Taliban Detainees." In it, Bush lifts verbatim the language
from the Gonzales/Addington memo of Jan. 25, 2002, and makes it his own.

Bush claimed, for example, "the war against terrorism ushers in a new paradigm [that] requires new thinking in the law of war."

Bush
then tries to square a circle, directing (twice in the two-page memo)
that "detainees be treated humanely and, to the extent appropriate and
consistent with military necessity, in a manner consistent with the
principles of GPW."

Smell Smoke?

The
smoking-gun memorandum of Feb. 7, 2002, was released to the media,
together with other documents, by Gonzales on June 22, 2004, but it did
not receive the attention it deserved until recently.

On
Dec. 11, 2008, Sen. Carl Levin, D-Michigan, and Sen. John McCain,
R-Arizona, ranking members of the Senate Armed Services Committee,
released, without dissent, the summary of their committee's report on
the abuse of detainees.

The report's first subhead was: Presidential Order Opens Door to Considering Aggressive Techniques,
and the first words of the first sentence of the first paragraph were,
"On Feb. 7, 2002, President Bush signed a memorandum stating..."

Referring
to the "President's order," the first paragraph adds that "the decision
to replace well-established military doctrine, i.e., legal compliance
with the Geneva Conventions, with a policy subject to interpretation,
impacted the treatment of detainees."

"Conclusion
Number One" of the Senate Armed Services Committee report states:
"Following the President's determination [of Feb. 7, 2002], techniques
such as waterboarding, nudity, and stress positions ... were authorized
for use in interrogations of detainees in U.S. custody."

Once Bush had opened the door with his Feb. 2, 2002, memo, other actions followed to implement the President's "new paradigm."

White
House lawyers worked with Deputy Assistant Attorney General John Yoo of
the Office of Legal Counsel to develop constitutional theories about
expansive presidential powers that effectively let Bush operate beyond
the law.

The OLC traditionally
is the office that tells presidents the limits of their constitutional
authorities. However, in this case, Yoo collaborated with Gonzales,
Addington and other White House lawyers in hammering out arguments that
the administration could use to implement harsh interrogations of al
Qaeda suspects.

On Aug. 1,
2002, Yoo and his OLC superior, Assistant Attorney General Jay Bybee,
issued an opinion that so narrowly defined "torture" that it cleared
the way for a variety of "enhanced interrogation techniques," including
waterboarding, which creates a near-drowning experience.

Top-Down Torture

As
the legal framework for Bush's torture policies took shape, senior
officers and lower-level participants in the interrogations understood
that the basis for the newly permitted harsh tactics stemmed from a
presidential decision.

In a
report on Abu Ghraib prisoner abuses, former Defense Secretary James
Schlesinger indicated that Lt. Gen. Ricardo Sanchez, the top commander
in Iraq, instituted a "dozen interrogation methods beyond" the Army's
standard practice under the Geneva Convention.

Sanchez
said he based his decision on "the President's memorandum," which he
said allowed for "additional, tougher measures" against detainees,
according to the Schlesinger report.

An
FBI e-mail of May 22, 2004, from a senior FBI agent in Iraq stated that
President Bush had signed an Executive Order approving the use of
military dogs, sleep deprivation and other tactics to intimidate Iraqi
detainees.

The FBI official
sought guidance in confronting an unwelcome dilemma. He asked if FBI
personnel in Iraq were required to report the U.S. military's harsh
interrogation of detainees when such treatment violated Bureau
standards but fit within the guidelines of a presidential Executive
Order.

In sum, abundant
evidence indicates that the torture techniques applied in the jail
cells and interrogation chambers - the "alternative set of procedures"
about which Bush boasted publicly on Sept. 6, 2006 - resulted directly
from Bush's Feb. 7, 2002, memo and implementing actions by his
administration.

Interrogators also were egged on by comments from Bush, Cheney and Rumsfeld regarding the "tough" treatments they favored.

One
fig leaf left covering the otherwise exposed role of Bush and his top
aides remains the clever inclusion of the word "humane" in the memo
that made possible what the International Committee of the Red Cross
condemned as "inhuman" treatment of terror suspects in U.S. custody.

There's
also the-Justice-Department-told-me-it-was-legal excuse, though the
evidence is now clear that the Bush administration essentially
stage-managed the Yoo-Bybee opinions.

For
instance, when the Yoo-Bybee opinions were withdrawn by Bybee's OLC
successor, Assistant Attorney General Jack Goldsmith, Addington and
other administration officials successfully pressured Goldsmith to
resign and then welcomed a new OLC chief, Steven Bradbury, who
reinstated the key opinions in May 2005.

And
- as the evidence built of illegal torture in 2006 - the Bush
administration pushed the "Military Commissions Act" through the
Republican-controlled Congress with phrasing that granted a degree of
retroactive immunity.

The law states that "no person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus
or other civil action or proceeding to which the United States, or a
current or former officer, employee, member of the Armed Forces, or
other agent of the United States is a party as a source of rights in
any court of the United States or its States or territories."

That provision was interpreted as a broad amnesty for U.S. officials,
including President Bush and other senior executives who may have
authorized torture, murder or other violations of human rights.

The law also granted Bush the authority "to interpret the meaning and
the application of the Geneva Conventions." [For details, see
Consortiumnews.com's "Shame on Us All."]

However, there remain legal questions about whether the law's language
would prevent prosecutions under pre-existing anti-torture laws.

The
sudden appearance of the damning report by the International Committee
of the Red Cross, initially given to the CIA's acting general counsel
on Feb. 14, 2007, greatly complicates any
rotten-apples-at-the-bottom-of-the-barrel-type disingenuousness.

In
a departure from the usual diplomatic parlance, the ICRC minces not a
word in referring to those who authorized torture. In the report
itself, the Red Cross calls on current U.S. authorities "to punish the
perpetrators, where appropriate, to prevent such abuses from happening
again."

What do you suppose is
holding Attorney General Eric Holder back from appointing an
independent prosecutor to investigate, with a view toward rubbing out,
once and for all, this shameful stain on our collective conscience?