On April 24, 1863, President Lincoln signed his General Order No. 100, written by Columbia University professor Francis Lieber, to decree that "military necessity does not admit of cruelty." The United States military formally respected that rule for nearly 140 years-until, on December 2, 2002, Secretary of Defense Donald Rumsfeld signed a memorandum on "Counter-Resistance Techniques" prepared for him by his general counsel, William J. Haynes II.
The Rumsfeld memo authorized the military commander in charge of Guantánamo "to employ, in his discretion," special "counter-resistance" techniques "during the interrogation of detainees at Guantánamo Bay." The memo purported to be a response to requests from military officers in charge at Guantánamo, who in October 2002 complained to senior Pentagon officials that "the current guidelines for interrogation procedures at GTMO limit the ability of interrogators to counter advanced resistance." In the memo, Haynes states that he has "discussed this with the Deputy [Paul Wolfowitz], Doug Feith and General Myers" and that he recommends authorizing most of a proposed three-step interrogation plan. In this sequence, relatively benign techniques ("Category I") such as yelling and deception are supplanted by increasingly harsh ones-"Category II" and "Category III"-such as prolonged stress positions, deprivation of light and sound, hooding, forced grooming, removal of clothing, and manipulation of "individual phobias (such as fear of dogs) to induce stress." The memo also concluded that, beyond these fifteen, three additional Category III techniques, including waterboarding, "may be legally available," although it stated that "as a matter of policy, a blanket approval" of those techniques "is not warranted at this time."
In fact, all fifteen techniques approved by Rumsfeld violated the US Army Field Manual rules governing the conduct of military interrogations, as well as the Geneva Conventions and the Uniform Code of Military Justice. But they were used over a period of fifty-four days on Mohammed al-Qahtani, a Guantánamo detainee who was alleged to have been trying to enter the US in August 2001 as the twentieth September 11 hijacker.
The decision to explicitly approve the use of cruel measures by military interrogators, for the first time in more than a century, was taken during the time when General Richard Myers was the chairman of the Joint Chiefs of Staff, from October 1, 2001, until 2005; as the memo states, Haynes "discussed" the decision with Wolfowitz, Myers, and Feith, with Haynes further noting that "I believe all join in my recommendation" for approving these fifteen techniques. One would have expected Myers to address in his memoir this important historical matter in which he was involved. That he has chosen not to do so is a striking feature of his account of his four years as the most senior person in a US military uniform. It undermines the book's authority.
With regard to the interrogation of detainees after September 11, it is well established that the path to torture was based on three key decisions. First, on February 7, 2002, President Bush decided that none of the detainees held at Guantánamo would have any legal rights under the Geneva Conventions. Second, starting in July 2002 the administration decided to authorize the use of waterboarding and other "enhanced interrogation techniques" against certain detainees held by the CIA, and obtained legal approval from the Department of Justice, in the form of two now notorious memos signed by Jay Bybee and largely written by John Yoo, with input from Dick Cheney's legal counsel, David Addington. Third, on December 2, 2002, came Secretary Rumsfeld's memo approving the use of fifteen techniques on prisoners held by the military at Guantánamo, causing the military to adopt some of the interrogation practices used by the CIA. Each decision was significant. The cumulative effect was devastating, opening the path to the abuses at Abu Ghraib and elsewhere.
In his memoir, General Myers addresses only the first decision, on the applicability of the Geneva Conventions, even though he had some knowledge about the second-the Justice Department's approval of coercive interrogation techniques-and was directly involved in the third, Rumsfeld's approval of the fifteen techniques at Guantánamo. Although he discusses the Geneva decision at some length, his treatment of it is, to be generous, less than complete. Despite much rhetoric about treating detainees according to the principles of the Geneva Conventions, the Bush administration made it clear it wanted to wage its Global War on Terror in a manner that was unconstrained by international agreements; with respect to the legal rights available to prisoners, it had decided that Geneva did not give them any. Myers writes that he supported the Geneva Conventions, arguing that they should apply to the Taliban although they should not get prisoner of war (POW) status. But he also held that "the Geneva Conventions did not apply to al-Qaida." According to Myers this view was shared "by most everybody involved in the discussions."
In fact, the Justice Department decided that the Geneva Conventions did not apply either to the Taliban or to al-Qaeda, and it is not true that either Myers's view or that of the Justice Department was shared by most everybody. Colin Powell's State Department, for example, expressed a contrary opinion. Nor were the views of General Myers and the Justice Department shared by senior military lawyers with knowledge and experience of the Geneva accords. These lawyers were cut out of the decision-making process-a fact on which Myers is silent. The view that Geneva rights did not apply was later rejected by the majority of justices on the Supreme Court: in June 2006 they ruled that all detainees at Guantánamo-Taliban, al-Qaeda, and everyone else-had the minimum rights set forth in Common Article 3 of the Geneva Conventions. It was this decision, unmentioned by General Myers, that caused the collapse of the Bush administration's policies on the treatment of detainees and opened the way to potential criminal liability for abusive interrogations.
Against this background it is surprising that the words "Common Article 3" do not appear anywhere in Myers's book. Common Article 3 makes it clear that there are no legal black holes: it establishes a rule of general application for prisoners captured in an armed military conflict to the effect that no detainee (whether captured in uniform or not) can be treated cruelly or tortured or subjected to outrages against human dignity, in any circumstances. Whether the provision was binding as a treaty, or reflected standards of customary law, is of no great practical consequence. The fact is that General Myers's principled position on the Geneva Conventions was an abject failure. The President's decision on Geneva did not reflect General Myers's desires and acted as a green light for abuse. Seven years later, General Myers seems completely oblivious to this. He describes a White House meeting in which he told Bush that while others present had lawyers to support them, "I don't have a lawyer with me. I don't think this is a legal issue." It was, he said, "principally a moral and a military question." But if Myers had solicited, and relied on, the advice of the military lawyers, much of the military's involvement in abusive interrogations might have been avoided.
Myers seems equally oblivious to the devastating consequences of his failed efforts. Once the Geneva Conventions were held to be inapplicable, the international rules and standards for detainee treatment were stripped away, and a legal black hole was created within which abuse would flourish. This, too, you would not know from the pages of Myers's memoir, because there is not a single reference to his direct involvement, in the autumn of 2002, in the secretary of defense's decision to approve an unprecedented and secret list of "counter-resistance" techniques that, if applied, could amount to torture. According to Myers, his role was "to vigorously provide the best professional advice possible to our political leaders." This he failed to do, joining others in recommending to Rumsfeld the approval of fifteen new interrogation techniques-for use not by the CIA, but by interrogators from the US military. These techniques were used on Mohammed al-Qahtani and at least one other prisoner at Guantánamo. About this advice he says not a word.
It is difficult to understand what might have caused General Myers to remain silent on this vital decision. He wrote his memoir at a time when treatment of detainees was being vigorously debated, and if he had anything to say that would put his actions in a more positive light this would have been an opportunity. Perhaps he was conscious that any views or factual recollections he might state would put others in an even more difficult situation. Or maybe he acted on legal advice. Either way, we have to assume that his silence is not accidental, but rather the result of a deliberate decision. It is not a decision that is likely to serve him well.
Myers does not mention that documents proposing the new interrogation techniques arrived on his desk in late October 2002, from General James T. Hill, the commander of US Southern Command, based in Miami. In an article published in May 2008, I described how Haynes had personally intervened to stop the review process that was initiated by then Captain, now Rear Admiral Jane Dalton, Myers's counsel at the Joint Chiefs, after Myers had passed the documents on to her. During testimony before the Senate Armed Services Committee in the summer of 2008, Dalton confirmed the accuracy of my piece, but went much further, revealing that she had initiated a "broadbased legal review," sending out General Hill's memo to the various branches of the military.
The responses came quickly. "All of the [four armed] services expressed concerns about the techniques that were listed in the memo," she said. "So, the next step, then, was to proceed with a larger general and policy review, which is what I intended to do."
That never happened: she was told to stop the review. "Exactly how you were told," asked Senator Mark Warner of Virginia, "was it in writing, or was it verbal?" It was not in writing. "The best of my recollection as to how this occurred is that the Chairman [General Myers] called me aside and indicated to me that Mr. Haynes did not want this broadbased review to take place," Dalton said, referring to a brief meeting with Myers. "He called me aside and said, ‘Mr. Haynes does not want this process to proceed.'"
By then serious concerns about interrogation techniques had been expressed by representatives of the four armed services, which were communicated promptly and without ambiguity. The Air Force thought some of the techniques "may constitute criminal conduct," including "torture." The Office of the Army Judge Advocate General thought that many of the techniques violated the provisions against torture and inhumane treatment of the International Criminal Court, warning that the Category II and Category III techniques "will not read well in either The New York Times or The Cairo Times." The Marine Corps said the proposed plan was legally insufficient and "would expose our service members to possible prosecution." The chief legal adviser to the DoD's Criminal Investigation Task Force believed some techniques "may subject service members to punitive articles of the Uniform Code of Military Justice." The Navy wanted more detailed interagency legal and policy review.
In the face of such clear opposition to the proposed techniques from each of the armed services, one would have expected General Myers to adopt a firm position. There is no evidence that he did so. It might also be expected that General Myers would explain why he seems to have caved in without a fight. Nowhere does he do this or express regret that it was during his chairmanship that the US military embraced cruelty as an official policy, apparently for the first time since 1863.
Why might that be? In April 2007 Myers generously granted me an on-the-record interview on the subject of al-Qahtani's interrogation-the Guantánamo prisoner for whom the fifteen special interrogation techniques were, according to multiple sources, largely designed. I felt he was honest in his responses, and there was no question he was unwilling to answer, although I also got the sense that he may have been out of his depth on these issues, an easy pushover for a pugnacious secretary of defense aided by Jim Haynes, a product of Harvard Law School.
Myers told me that when the documents arrived in late October 2002 he immediately recognized the importance of the decision that faced them. It was, he said, "a big step" for General Hill to have written on so serious an issue, and that it would require getting "the staff together and work this up to where we have some opinions on this, legalities and everything else." He described how he involved Jane Dalton and the central role played by Haynes. "It's radioactive," he told me, "so we've got to get an answer back to [General Hill] that is the right answer."
He also seemed to believe that "all the techniques came out of the book"-the US Army Field Manual. This answer was surprising. We went, one by one, through each of the fifteen techniques approved by Rumsfeld into three progressively severe groups. The Category I techniques didn't present large problems, he said, since they were regularly used in training. "I expect to get yelled at," he explained, "they're going to deceive you, you're going to have different techniques, they're going to give you false stuff."
As we moved down the list onto Category II we reached forced grooming (cutting off hair), the use of dogs, and other matters. "Dogs were only to be present, never to be..." His voice trailed off. Removal of clothing? That "would be less fun." Forced grooming? "The last two here are a little...the last one in particular"-referring to the use of "individual phobias (such as fear of dogs) to induce stress"-"you know in general I think, that's how we train. Those are the kind of things we train against." His voice paused. "There was never a physical injury there...," he said, throwing light on the rationale for humiliation.
"I think all of these are in the manual," he then offered.
"They're not," I responded.
"No they're not," I said, "none of them are in the manual."
This was a moment that occurs only rarely in any interview: your interlocutor inadvertently reveals the full extent to which he has fallen into a fog. There was one issue on which I had a particular interest. As chairman of the Joint Chiefs, I asked, are you comfortable with all of these techniques being used on American personnel? "Not [the ones] in this memo," he responded without hesitation. The response left open the unanswerable follow-up question: If these techniques are "inappropriate" for us, why are they appropriate for detainees in US custody?
Myers doesn't address the question in his book. But he vehemently maintains that he did not believe himself to have signed off on torture. "When you see this, you say, holy mackerel, because one thing that I don't think I ever authorized in any of the communications I sent to anybody was...we never authorized torture, we just didn't, not what we would do." With these techniques there were "nuances within nuances," he explained, and issues arose: "What about combinations? permutations of these? how will they impact? And we in fact, in front of the secretary, we got into a lot of that."
A lot was obviously still not enough. In January 2009, Susan J. Crawford, former chief judge of the US Court of Appeals for the Armed Forces who was appointed in 2007 as the convening authority of the Guantánamo military commissions, told Bob Woodward that al-Qahtani's treatment at Guantánamo "met the legal definition of torture," and that was why the charges against him were dropped in May 2008 and why new charges were not filed. It was, she said, the "combination of things that had a medical impact on him, that hurt his health.... It was that medical impact that pushed me over the edge" to call it torture.
General Myers's actions had even more far-reaching consequences. In August 2003, the techniques he failed to object to for al-Qahtani migrated to Iraq where they were formally approved by Lieutenant General Ricardo Sanchez, a month before the abuses of Abu Ghraib were photographically recorded. In the executive summary of its report on detainee abuse, made public in December 2008, the Senate Armed Services Committee concluded:
The abuse of detainees at Abu Ghraib in late 2003 was not simply the result of a few soldiers acting on their own. Interrogation techniques such as stripping detainees of their clothes, placing them in stress positions, and using military working dogs to intimidate them appeared in Iraq only after they had been approved for use in Afghanistan and at GTMO. Secretary of Defense Donald Rumsfeld's December 2, 2002 authorization of aggressive interrogation techniques and subsequent interrogation policies and plans approved by senior military and civilian officials conveyed the message that physical pressures and degradation were appropriate treatment for detainees in US.
This too is a matter on which Myers's silence is troubling, in view of his evident unease with the Abu Ghraib photographs. He singles out images of abuse, humiliation, hooding, and nudity, describing the shame he felt as to "what our fellow servicemen and women did at Abu Ghraib." Yet he appears oblivious to the widespread recognition that the techniques he supported for Guantánamo were so closely connected with such abuse.
General Myers is not alone in avoiding these issues, which raise the prospect of criminal investigations. The mode of total silence is adopted by others, like Douglas J. Feith, who worked with General Myers as undersecretary of defense from 2001 to 2005 and was also closely involved in the Rumsfeld memo. In December 2007 I interviewed Feith about the Pentagon's approval of additional techniques for use by military interrogators at Guantánamo. My first mention of al-Qahtani elicited an all-too-rapid "I had nothing to do with that." A few months later Feith's memoir War and Decision was published, purporting to be "a contribution to history, extensively documented and as accurate as one person's account can be." Curiously, the extensive documentation did not include any reference to the Rumsfeld memo, in which Haynes explicitly refers to Feith's support.
Feith was one of only two people who received copies of Rumsfeld's memo; the other was Myers. The name of Mohammed al-Qahtani does not appear in Feith's book, although the issue of detainee abuse is addressed, and one cryptic paragraph (out of Feith's 674 pages) is devoted, obliquely, to the circumstances of al-Qahtani's abuse. It points the finger of blame at US Southern Command, which "requested permission to try some techniques that went beyond the Army Field Manual." Feith makes no mention of the memo, or of the efforts of his own office to take part in the quest for the new techniques before Southern Command made its official request to the Pentagon.
Another approach is partial silence, the mode adopted by Jack Goldsmith in a skillfully written but partial account of his time as head of the Office of Legal Counsel, from October 2003 to July 2004. He glosses over his earlier period assisting the Bush administration, from September 2002 when Haynes appointed him as his "Special Counsel" and provided him with "an endless stream of fascinating legal problems," including "Guantánamo detentions." Again, Goldsmith makes no mention of al-Qahtani or Haynes's role in securing Pentagon endorsement for the use of torture in military interrogations, despite the fact that it occurred at the very time he served under Haynes.
Goldsmith does refer to a visit he made to Guantánamo with Haynes in September 2002 when, it is now known, the interrogation of al-Qahtani was discussed. We do not know from Goldsmith himself what his knowledge or involvement, if any, may have been in the process of decision-making that led Haynes to write the December 2 memo. What is apparent is that Goldsmith saw nothing in Haynes's actions that might preclude appointment to the federal bench: in July 2006, well after Haynes's authorship of the memo became public, Goldsmith joined three others in writing to the Senate Judiciary Committee to support Haynes's nomination for a judgeship on the United States Court of Appeals for the Fourth Circuit. The nomination failed.
Yet not all writers have fallen into total amnesia about the treatment of Mohammed al-Qahtani. John Yoo, author of the two Justice Department memos of August 1, 2002, secretly relied on by Haynes in recommending the new techniques of interrogation for use on al-Qahtani, has expressed the view that only the CIA, and not the DoD, should have engaged in such interrogations. His account explicitly discusses the "coercive interrogation" of al-Qahtani, which he justifies on the grounds that it produced positive results, did not constitute torture, and did not migrate to Abu Ghraib-all points now established as wrong. He addresses the dark subject that Myers and others go out of their way to avoid.
The torture of Mohammed al-Qahtani was a defining moment in American military history. For that reason, Myers should have addressed his involvement in it. His memoir gives no hint why this decent family man would have rolled over on this issue when confronted by the desires of his political masters. What we know of his earlier career-Air Force training school, distinguished duty in Vietnam, fighter training school, commander of US forces in Japan-points to a man imbued with the best values of the US military. Perhaps his Air Force background implied a greater distance from the Geneva Conventions, although he recognized the real possibility he could have been tortured in Vietnam. Perhaps another fight distracted him: as chairman he successfully resisted efforts by Rumsfeld and Haynes to deprive the military of its independent advisory functions. Perhaps he genuinely believed that the newly approved interrogation techniques were justifiable and did not cross any lines.
Whatever the reason, the silence of Myers and others indicates the uncomfortable truth that the full circumstances in which the CIA and then the US military adopted interrogation strategies amounting to torture remains to be explained. Under the 1984 Convention Against Torture, to which the US is a party, torture and complicity in torture are international crimes that must be investigated. President Obama's administration does not have the luxury of being able to look the other way. His attorney general, Eric Holder, seems to recognize that, and he has just appointed a prosecutor to address these issues. To do nothing is to cover up the crime. Silence is complicity.
- August 26, 2009
A narrative of participants and chronology of the Department of Justice Office of Legal Counsel opinions on the CIA's Detention and Interrogation Program prepared by Senator John D. Rockefeller IV of the US Senate Intelligence Committee was declassified by Attorney General Eric Holder on April 19, 2009: intelligence.senate.gov/pdfs/olcopinion.pdf.
On February 2, 2002, William H. Taft IV, the legal adviser at the Department of State, wrote to Alberto Gonzales, the White House counsel, urging the application of the Geneva Conventions to the conflict in Afghanistan:
The President should know that a decision that the Conventions do apply is consistent with the plain language of the Conventions and the unvaried practice of the United States in introducing its forces into conflict over fifty years.... From a policy standpoint, a decision that the Conventions apply provides the best legal basis for treating the al Qaeda and Taliban detainees in the way we intend to treat them. It demonstrates that the United States bases its conduct not just on its policy preferences but on its international legal obligations.
Reproduced in The Torture Papers: The Road to Abu Ghraib, edited by Karen J. Greenberg and Joshua L. Dratel (Cambridge University Press, 2005), p. 129.
Common Article 3 is so-called because it appears in all four Geneva Conventions. In relevant part it provides:
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed "hors de combat" by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;...
(c) outrages upon personal dignity, in particular humiliating and degrading treatment....
Philippe Sands, "The Green Light," Vanity Fair, May 2008.
See transcript of hearings to "receive testimony on the origins of aggressive interrogation techniques: Part I of the Committee's inquiry into the treatment of detainees in US custody," June 17, 2008, at p. 71, http://armed-services.senate.gov/testimony.cfm?wit_id=7521 &id=3413.
See "The origins of aggressive interrogation techniques: Part I of the Committee's inquiry into the treatment of detainees in US custody, Index of Documents, Tabs 10 to 14," at http://levin.senate.gov/newsroom/supporting/2008/Documents.SASC.061708.pdf.
Interview between the author and General Richard Myers, April 26, 2007, transcript and audio held by author.
Bob Woodward, "Detainee Tortured, Says US Official," The Washington Post, January 14, 2009.
See Senate Armed Services Committee, "Inquiry into the Treatment of Detainees in US Custody," November 20, 2008, publicly released April 21, 2009, Executive Summary, Conclusion 19; available at levin.senate.gov/newsroom/release.cfm?id=313072.
Interview between the author and Douglas J. Feith, December 6, 2006, transcript and audio available at www.vanityfair.com/politics/features/2008/07/feith_transcript200807.
War and Decision: Inside the Pentagon at the Dawn of the War on Terrorism (Harper, 2008), p. ix.
Douglas J. Feith, War and Decision: Inside the Pentagon at the Dawn of the War on Terrorism (Harper, 2008), p. 165. According to the report of the Senate Armed Services Committee, Feith's office was involved in efforts to identify new interrogation techniques as early as June 2002; see "Inquiry into the Treatment of Detainees in US Custody," pp. 21 and 92.
Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (Norton, 2007), p. 21; reviewed in these pages by David Cole, December 6, 2007.
Letter from James B. Comey, Jack Goldsmith, Patrick F. Philbin, and Larry D. Thompson to Senator Arlen Spector and Senator Patrick J. Leahy, July 10, 2006, at: balkin.blogspot.com/haynes.nomination.thompson.letter.pdf.
Philippe Sands, Torture Team: Rumsfeld's Memo and the Betrayal of American Values (Palgrave Macmillan, 2008), p. 74; reviewed in these pages by David Cole, January 15, 2009.
John Yoo, War by Other Means: An Insider's Account of the War on Terror (Atlantic Monthly Press, 2006), pp. 191-199; reviewed in these pages by David Luban, March 15, 2007.