May 18, 2009
On April 16, the
Obama administration released four memos that were used to authorize
torture in interrogations during the Bush administration. When
President Obama released the memos, he said, "It is our intention to
assure those who carried out their duties relying in good faith upon
legal advice from the Department of Justice that they will not be
subject to prosecution."
Yet 13 key people in the Bush administration cannot claim
they relied on the memos from the DOJ's Office of Legal Counsel. Some
of the 13 manipulated the federal bureaucracy and the legal process to
"preauthorize" torture in the days after 9/11. Others helped implement
torture, and still others helped write the memos that provided the Bush
administration with a legal fig leaf after torture had already begun.
The Torture 13 exploited the federal bureaucracy to
establish a torture regime in two ways. First, they based the enhanced
interrogation techniques on techniques used in the U.S. military's
Survival, Evasion, Resistance and Escape (SERE) program. The program --
which subjects volunteers from the armed services to simulated hostile
capture situations -- trains servicemen and -women to withstand
coercion well enough to avoid making false confessions if captured. Two
retired SERE psychologists contracted with the government to "reverse-engineer" these techniques to use in detainee interrogations.
The Torture 13 also abused the legal review process in the
Department of Justice in order to provide permission for torture. The
DOJ's Office of Legal Counsel (OLC) played a crucial role. OLC provides
interpretations on how laws apply to the executive branch. On issues
where the law is unclear, like national security, OLC opinions can set
the boundary for "legal" activity for executive branch employees. As
Jack Goldsmith, OLC head from 2003 to 2004, explains it, "One
consequence of [OLC's] power to interpret the law is the power to
bestow on government officials what is effectively an advance pardon
for actions taken at the edges of vague criminal statutes." OLC has the
power, Goldsmith continues, to dispense "get-out-of-jail-free cards."
The Torture 13 exploited this power by collaborating on a series of OLC
opinions that repeatedly gave U.S. officials such a
"get-out-of-jail-free card" for torturing.
Between 9/11 and the end of 2002, the Torture 13 decided
to torture, then reverse-engineered the techniques, and then crafted
the legal cover. Here's who they are and what they did:
1. Dick Cheney, vice president (2001-2009)
On the morning of 9/11, after the evacuation of the White
House, Dick Cheney summoned his legal counsel, David Addington, to
return to work. The two had worked together for years. In the 1980s,
when Cheney was a congressman from Wyoming and Addington a staff
attorney to another congressman, Cheney and Addington argued that in
Iran-Contra, the president could ignore congressional guidance on
foreign policy matters. Between 1989 and 1992, when Dick Cheney was the
elder George Bush's secretary of defense, Addington served as his
counsel. He and Cheney saved the only known copies of abusive
interrogation technique manuals taught at the School of the Americas.
Now, on the morning of 9/11, they worked together to plot an expansive
grab of executive power that they claimed was the correct response to
the terrorist threat. Within two weeks, they had gotten a memo
asserting almost unlimited power for the president as "the sole organ
of the Nation in its foreign relations," to respond to the terrorist
attacks. As part of that expansive view of executive power, Cheney and
Addington would argue that domestic and international laws prohibiting
torture and abuse could not prevent the president from authorizing
harsh treatment of detainees in the war against terror.
But Cheney and Addington also fought bureaucratically to
construct this torture program. Cheney led the way by controlling who
got access to President Bush -- and making sure his own views preempted others'.
Each time the torture program got into trouble as it spread around the
globe, Cheney intervened to ward off legal threats and limits, by badgering the CIA's inspector general when he reported many problems with the interrogation program, and by lobbying Congress to legally protect those who had tortured.
Most shockingly, Cheney is reported to have ordered torture himself,
even after interrogators believed detainees were cooperative. Since the
2002 OLC memo known as "Bybee Two" that authorizes torture premises its
authorization for torture on the assertion that "the interrogation team
is certain that" the detainee "has additional information he refuses to
divulge," Cheney appears to have ordered torture that was illegal even
under the spurious guidelines of the memo.
2. David Addington, counsel to the vice president (2001-2005), chief of staff to the vice president (2005-2009)
David Addington championed the fight to argue that the
president -- in his role as commander in chief -- could not be bound by
any law, including those prohibiting torture. He did so in two ways. He advised the lawyers
drawing up the legal opinions that justified torture. In particular, he
ran a "War Council" with Jim Haynes, John Yoo, John Rizzo and Alberto
Gonzales (see all four below) and other trusted lawyers, which crafted
and executed many of the legal approaches to the war on terror together.
In addition, Addington and Cheney wielded bureaucratic carrots and sticks -- notably by giving or withholding promotions
for lawyers who supported these illegal policies. When Jack Goldsmith
withdrew a number of OLC memos because of the legal problems in them, Addington was the sole administration lawyer who defended them.
Addington's close bureaucratic control over the legal analysis process
shows he was unwilling to let the lawyers give the administration a
"good faith" assessment of the laws prohibiting torture.
3. Alberto Gonzales, White House counsel (2001-2005), and attorney general (2005-2008)
As White House counsel, Alberto Gonzales was nominally in
charge of representing the president's views on legal issues, including
national security issues. In that role, Gonzales wrote and reviewed a
number of the legal opinions that attempted to immunize torture. Most
important, in a Jan. 25, 2002, opinion reportedly written with David
Addington, Gonzales paved the way for exempting al-Qaida detainees from
the Geneva Conventions. His memo claimed the "new kind of war"
represented by the war against al-Qaida "renders obsolete Geneva's
strict limitations on questioning of enemy prisoners." In a signal that
Gonzales and Addington adopted that position to immunize torture,
Gonzales argued that one advantage of not applying the Geneva
Convention to al-Qaida would "substantially reduce the threat of
domestic criminal prosecution under the War Crimes Act." The memo even specifically foresaw the possibility of independent counsels' prosecuting acts against detainees.
4. James Mitchell, consultant
Even while Addington, Gonzales and the lawyers were
beginning to build the legal framework for torture, a couple of
military psychologists were laying out the techniques the military
would use. James Mitchell, a retired military psychologist, had been a
leading expert in the military's SERE program. In December 2001, with
his partner, Bruce Jessen, Mitchell reverse-engineered SERE techniques
to be used to interrogate detainees. Then, in the spring of 2002,
before OLC gave official legal approval to torture, Mitchell oversaw
Abu Zubaydah's interrogation. An FBI agent on the scene describes
Mitchell overseeing the use of "borderline torture."
And after OLC approved waterboarding, Mitchell oversaw its use in ways
that exceeded the guidelines in the OLC memo. Under Mitchell's
guidance, interrogators used the waterboard with "far greater frequency
than initially indicated" -- a total of 183 times in a month for Khalid
Sheikh Mohammed and 83 times in a month for Abu Zubaydah.
5. George Tenet, director of Central Intelligence (1997-2004)
As director of the CIA during the early years of the war
against al-Qaida, Tenet had ultimate management responsibility for the
CIA's program of capturing, detaining and interrogating suspected
al-Qaida members and briefed top Cabinet members on those techniques.
Published reports say Tenet approved every detail of the interrogation
plans: "Any change in the plan -- even if an extra day of a certain
treatment was added -- was signed off on by the Director."
It was under Tenet's leadership that Mitchell and Jessen's SERE
techniques were applied to the administration's first allegedly
high-value al-Qaida prisoner, Abu Zubaydah. After approval of the harsh
techniques, CIA headquarters ordered Abu Zubaydah to be waterboarded
even though onsite interrogators believed Zubaydah was "compliant."
Since the Bybee Two memo
authorizing torture required that interrogators believe the detainee
had further information that could only be gained by using torture,
this additional use of the waterboard was clearly illegal according to
6. Condoleezza Rice, national security advisor (2001-2005), secretary of state (2005-2008)
As national security advisor to President Bush, Rice
coordinated much of the administration's internal debate over
interrogation policies. She approved (she now says she "conveyed the authorization") for the first known officially sanctioned use of torture -- the CIA's interrogation of Abu Zubaydah -- on July 17, 2002.
This approval was given after the torture of Zubaydah had begun, and
before receiving a legal OK from the OLC. The approval from the OLC was
given orally in late July and in written form on Aug. 1, 2002. Rice's
approval or "convey[ance] of authorization" led directly to the
intensified torture of Zubaydah.
7. John Yoo, deputy assistant attorney general, Office of Legal Counsel (2001-2003)
As deputy assistant attorney general of OLC focusing on
national security for the first year and a half after 9/11, Yoo drafted
many of the memos that would establish the torture regime, starting
with the opinion claiming virtually unlimited power for the president
in times of war. In the early months of 2002, he started working with
Addington and others to draft two key memos authorizing torture: Bybee
One (providing legal cover for torture) and Bybee Two (describing the
techniques that could be used), both dated Aug. 1, 2002. He also helped
draft a similar memo approving harsh techniques for the military
completed on March 14, 2003, and even a memo eviscerating Fourth
Amendment protections in the United States. The Bybee One and DOD memos
argue that "necessity" or "self-defense" might be used as defenses
against prosecution, even though the United Nations Convention Against Torture explicitly states
that "no exceptional circumstances whatsoever, whether a state of war
or a threat or war ... may be invoked as a justification of torture." Bybee Two,
listing the techniques the CIA could use in interrogation, was premised
on hotly debated assumptions. For example, the memo presumed that Abu
Zubaydah was uncooperative, and had actionable intelligence that could
only be gotten through harsh techniques. Yet Zubaydah had already cooperated with the FBI.
The memo claimed Zubaydah was mentally and physically fit to be
waterboarded, even though Zubaydah had had head and recent gunshot
injuries. As Jack Goldsmith described Yoo's opinions, they "could be
interpreted as if they were designed to confer immunity for bad acts."
In all of his torture memos, Yoo ignored key precedents relating both specifically to waterboarding and to separation of powers.
8. Jay Bybee, assistant attorney general, Office of Legal Counsel (2001-2003)
As head of the OLC when the first torture memos were approved, Bybee signed the memos named after him that John Yoo drafted.
At the time, the White House knew that Bybee wanted an appointment as a
Circuit Court judge; after signing his name to memos supporting
torture, he received such an appointment. Of particular concern is the timing of Bybee's approval of the torture techniques. He first approved some techniques on July 24, 2002.
The next day, Jim Haynes, the Defense Department's general counsel,
ordered the SERE unit of DOD to collect information including details
on waterboarding. While the record is contradictory on whether Haynes
or CIA General Counsel John Rizzo gave that information to OLC, on the
day they did so, OLC approved waterboarding. One of the documents in that packet identified these actions as torture, and stated that torture often produced unreliable results.
9. William "Jim" Haynes, Defense Department general counsel (2001-2008)
As general counsel of the Defense Department, Jim Haynes
oversaw the legal analysis of interrogation techniques to be used with
military detainees. Very early on, he worked as a broker between SERE
professionals and the CIA. His office first asked for information on
"exploiting" detainees in December 2001, which is when James Mitchell
is first known to have worked on interrogation plans. And later, in
July 2002, when CIA was already using torture with Abu Zubaydah but
needed scientific cover before OLC would approve waterboarding, Haynes
ordered the SERE team to produce such information immediately.
Later Haynes played a key role in making sure some of the
techniques were adopted, with little review, by the military. He was
thus crucial to the migration of torture to Guantanamo and then Iraq.
In September 2002, Haynes participated in a key visit to Guantanamo
(along with Addington and other lawyers) that coincided with requests
from DOD interrogators there for some of the same techniques used by
Haynes ignored repeated warnings
from within the armed services about the techniques, including
statements that the techniques "may violate torture statute" and "cross
the line of 'humane' treatment." In October 2002, when the legal
counsel for the military's Joint Chiefs of Staff attempted to conduct a
thorough legal review of the techniques, Haynes ordered her to stop,
because "people were going to see" the objections that some in the
military had raised. On Nov. 27, 2002, Haynes recommended that
Secretary of Defense Donald Rumsfeld authorize many of the requested
techniques, including stress positions, hooding, the removal of
clothing, and the use of dogs -- the same techniques that showed up
later in the abuse at Abu Ghraib.
10. Donald Rumsfeld, secretary of defense (2001-2006)
As secretary of defense, Rumsfeld signed off on
interrogation methods used in the military, notably for Abu Ghraib,
Bagram Air Force Base and Guantanamo Bay. With this approval, the use
of torture would move from the CIA to the military. A recent bipartisan Senate report
concluded that "Secretary of Defense Donald Rumsfeld's authorization of
interrogation techniques at Guantanamo Bay was a direct cause of
detainee abuse there." Rumsfeld personally approved techniques
including the use of phobias (dogs), forced nudity and stress positions
on Dec. 2, 2002, signing a one-page memo prepared for him by Haynes.
These techniques were among those deemed torture in the Charles Graner case and the case of "20th hijacker" Mohammed al-Qahtani. Rumsfeld also personally authorized
an interrogation plan for Moahmedou Ould Slahi on Aug. 13, 2003; the
plan used many of the same techniques as had been used with al-Qahtani,
including sensory deprivation and "sleep adjustment." And through it
all, Rumsfeld maintained a disdainful view on these techniques, at one
point quipping on a memo approving harsh techniques, "I stand for eight
to 10 hours a day. Why is standing limited to four hours?"
11. John Rizzo, CIA deputy general counsel (2002-2004), acting general counsel of the Central Intelligence Agency (2001-2002, 2004-present)
As deputy general counsel and then acting general counsel
for the CIA, John Rizzo's name appears on all of the known OLC opinions
on torture for the CIA. For the Bybee Two memo,
Rizzo provided a number of factually contested pieces of information to
OLC -- notably, that Abu Zubaydah was uncooperative and physically and
mentally fit enough to withstand waterboarding and other enhanced
techniques. In addition, Rizzo provided a description of waterboarding using one standard, while the OLC opinion described a more moderate standard.
Significantly, the description of waterboarding submitted to OLC came
from the Defense Department, even though NSC had excluded DOD from
discussions on the memo. Along with the description of waterboarding
and other techniques, Rizzo also provided a document
that called enhanced methods "torture" and deemed them unreliable --
yet even with this warning, Rizzo still advocated for the CIA to get
permission to use those techniques.
12. Steven Bradbury, principal deputy assistant attorney general, OLC (2004), acting assistant attorney general, OLC (2005-2009)
In 2004, the CIA's inspector general wrote a report
concluding that the CIA's interrogation program might violate the
Convention Against Torture. It fell to Acting Assistant Attorney
General Steven Bradbury to write three memos in May 2005 that would
dismiss the concerns the IG Report raised -- in effect, to affirm the
OLC's 2002 memos legitimizing torture. Bradbury's memos noted the ways in which prior torture had exceeded the Bybee Two memo:
the 183 uses of the waterboard for Khalid Sheikh Mohammed in one month,
the gallon and a half used in waterboarding, the 20 to 30 times a
detainee is thrown agains the wall, the 11 days a detainee had been
made to stay awake, the extra sessions of waterboarding ordered from
CIA headquarters even after local interrogators deemed Abu Zubaydah to
be fully compliant. Yet Bradbury does not consider it torture. He notes
the CIA's doctors' cautions about the combination of using the
waterboard with a physically fatigued detainee, yet in a separate memo approves the use of sleep deprivation and waterboading in tandem.
He repeatedly concedes that the CIA's interrogation techniques as
actually implemented exceeded the SERE techniques, yet repeatedly
points to the connection to SERE to argue the methods must be legal.
And as with the Bybee One memo, Bradbury resorts to precisely the kind
of appeal to exceptional circumstances -- "used only as necessary to protect against grave threats" -- to distinguish U.S. interrogation techniques from the torture it so closely resembles around the world.
13. George W. Bush, president (2001-2009)
While President Bush maintained some distance from the torture for years -- Cheney describes him "basically" authorizing it
-- he served as the chief propagandist about its efficacy and
necessity. Most notably, on Sept. 6, 2006, when Bush first confessed to
the program, Bush repeated the claims made to support the Bybee Two memo:
that Abu Zubaydah wouldn't talk except by using torture. And in 2006,
after the CIA's own inspector general had raised problems with the
program, after Steven Bradbury had admitted all the ways that the
torture program exceeded guidelines, Bush still claimed it was legal.
"[They] were designed to be safe, to comply with our
laws, our Constitution and our treaty obligations. The Department of
Justice reviewed the authorized methods extensively, and determined
them to be lawful."
With this statement, the deceptions and bureaucratic games
all came full circle. After all, it was Bush who, on Feb. 7, 2002, had
declared the Geneva Conventions wouldn't apply (a view the Supreme Court ultimately rejected).
Bush's inaction in torture is as important as his actions.
Bush failed to fulfill legal obligations to notify Congress of the
torture program. A Senate Intelligence timeline on the torture program
makes clear that Congress was not briefed on the techniques used in the
torture program until after Abu Zubaydah had already been waterboarded.
And in a 2003 letter,
then House Intelligence ranking member Jane Harman shows that she had
not yet seen evidence that Bush had signed off on this policy. This
suggests President Bush did not provide the legally required notice to Congress, violating National Security Decisions Directive-286. What Bush did not say is as legally important as what he did say.
Yet, ultimately, Bush and whatever approval he gave the program is at the center of the administration's embrace of torture. Condoleezza Rice recently said,
"By definition, if it was authorized by the president, it did not
violate our obligations in the Convention Against Torture." While Rice
has tried to reframe her statement, it uses the same logic used by John
Yoo and David Addington to justify the program, the shocking claim that
international and domestic laws cannot bind the president in times of
war. Bush's close allies still insist if he authorized it, it couldn't
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