Christopher Paine /Bulletin of the Atomic Scientists – 2004-11-30 23:01:37
(November/December 2004) — Following 9/11, some time in late 2001 or possibly January 2002, George W. Bush signed a still-secret presidential intelligence “finding” creating a covert Special Access Program to track down and either kill or capture high-value Al Qaeda terrorists worldwide. Those captured would be indefinitely detained at secret locations and coercively interrogated.
For less senior Al Qaeda and Taliban fighters captured in Afghanistan, the administration created a visible regime of indefinite detention at the leased US naval base at Guantanamo Bay, Cuba, and asserted that this domain was beyond the reach of both international humanitarian law and the US Constitution.
Curiously, Defense Secretary Donald Rumsfeld’s terse January 19, 2002 Memorandum to the Joint Chiefs and US Combatant Commanders, denying “prisoner of war status” under the Geneva Convention to Al Qaeda and Taliban detainees, predated the president’s recently declassified order on this subject by almost three weeks.
In the interim, a flurry of memos and National Security Council meetings involving Attorney General John Ashcroft, Counsel to the President Alberto Gonzales, and legal advisers to the State and Defense departments, sought to identify a legal posture that would, in Ashcroft’s words, “provide the highest assurance that no court would subsequently entertain charges that American military officers, intelligence officials, or law enforcement officials violated Geneva Convention rules relating to field conduct, detention conduct, or interrogation of detainees.” 
President Bush determined that “none of the provisions of Geneva” — not merely prisoner of war status — “apply to our conflict with Al Qaeda in Afghanistan or elsewhere throughout the world.” He also “accepted” Ashcroft’s conclusion that he had “the authority under the Constitution to suspend Geneva as between the United States and Afghanistan,” but would “decline to exercise that authority at this time.” He then proceeded to accept the Justice Department’s conclusion that “common Article 3 of Geneva does not apply to either Al Qaeda or Taliban detainees” — an utterly specious and inept legal conclusion, as common Article 3 runs through all four Geneva Conventions and provides an inescapable minimum threshold for humane treatment for all detainees under all conceivable circumstances.
The president’s decision memorandum continues in this incoherent vein, making one legal blunder after another, and concludes with the following convoluted formulation: “I hereby reaffirm the order previously issued by the Secretary of Defense to the United States Armed Forces, requiring that the detainees be treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva” (emphasis added).
With a stroke of the pen, Bush erased 50 years of US support for international humanitarian law and secretly made continued US observance of the Geneva Conventions the handmaiden of “military necessity.”
Opening the Door to Torture
Apparently content with the theory that Bush’s imperial screed would insulate them from future prosecution for violations of international humanitarian law, the president’s men set about killing and capturing Al Qaeda and possibly other terrorists and stashing them in a clandestine network of lockups at various sites around the globe, where they could be aggressively interrogated using a range of “counter-resistance” strategies. These reportedly included such techniques as prolonged isolation in bare dark cells, being kept naked, exposure to extreme heat and cold, prolonged hooding, sleep denial, stress positions, continuous loud music, sexual humiliation, diet manipulation (bread and water), the withholding of medications, and the manipulation of phobias, such as fear of dogs.
According to the May 13 New York Times, the interrogation of Khalid Sheik Mohammed (a CIA Al Qaeda detainee who is believed to have helped plan the 9/11 attacks) went further, including a technique known as “water-boarding,” in which a prisoner is strapped down with his head hanging over the edge of a board, and the board pivoted in and out of a tank of water, thereby inducing intense feelings of suffocation and a fear of death by drowning.
Other CIA “ghost detainees” in Afghanistan and Iraq, never registered with the International Committee of the Red Cross (ICRC) as required under international law, were reportedly beaten to death during their interrogations. To avoid possible culpability under US anti-torture statutes, the harshest interrogations are said to be accomplished through rendering detainees into the temporary custody of cooperative foreign intelligence services, such as those of Egypt and Saudi Arabia, with a record of employing torture.
Two related developments led to the partial uncovering of this dirty war. The first was a prolonged internal debate, from October 2002 to April 2003, regarding the permissible range of “counter-resistance techniques” for interrogation of mid-level detainees held at the US prison at Guantanamo Bay. The tenor of these discussions so alarmed a number of Pentagon lawyers — JAGs — that they alerted the New York Bar Association, leading to the leak of bizarre and downright repulsive documents that should have prompted the sanctioning of their authors for unethical conduct.
One document, a memorandum from then-Assistant Attorney General (now federal judge) Jay Bybee to White House Counsel Gonzales, titled “Standard of Conduct for Interrogation,” is a 50-page, single-spaced exegesis of possible ways to erode the prohibitions established in the federal statute implementing the Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment. Bybee concluded that “for an act to constitute torture as defined in [US law], it must inflict pain . . . equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” Therefore there remains, he opined, a “wide range” of techniques for inflicting “cruel, inhuman, or degrading treatment” that do not “rise to the level of torture.” 
Rumsfeld’s Torture Memo
For “resistant” detainees at “Gitmo,” Rumsfeld initially approved a list of interrogation techniques in early December 2002 (later partially rescinded) that included “deprivation of light and auditory stimuli,” “20-hour interrogations,” “removal of clothing,” “stress position for a maximum of four hours,” “isolation up to 30 days,” “hooding during transport and interrogation,” and “inducing stress by use of detainee’s fears (e.g. dogs).”
Snarling dogs would make a memorable reappearance on the night shift at the Abu Ghraib prison in Iraq, biting one naked prisoner on the leg and terrifying others into urinating on themselves to [the amusement of] the guards. Rumsfeld’s original December 2002 list bears an uncanny resemblance to the list of interrogation “rules of engagement” techniques approved nine months later by Lt. Gen. Ricardo Sanchez, the combined task force commander in Iraq.
How the rules traveled from Bush’s specially constructed legal black hole at Gitmo (since punctured by a US court ruling) to a prison in Iraq, where for once even the administration conceded that Iraqi detainees were “protected persons” under the Geneva Conventions, has been the subject of much public — but disingenuous — befuddlement on the part of senior Pentagon officials.
As the spring and summer months rolled by, Pentagon officials buffaloed Virginia Republican Sen. John Warner’s inquiry into the scandal by repeatedly pleading ignorance, or only partial knowledge, and urging the committee to await the results of numerous Pentagon investigations before proceeding further with its own. But Rumsfeld and his Undersecretary for Intelligence Stephen Cambone have obviously known from the outset how the mysterious migration of coercive practices to Iraq occurred, since they either concurred in the transfer or, more likely, directed it as the supervisors of the president’s classified Special Access Program to combat terrorism.
Arrest Every “Suspect”
By late summer 2002, a mounting insurgency was fulfilling Saddam’s public pre-war pledge to make life “hell” for US occupiers, thereby deflating the public myth of “Mission Accomplished” and sabotaging any hope of continued progress toward reconstruction. Desperate to find out who was organizing the attacks, US forces began rounding up large numbers of Iraqi civilians “in the general vicinity of a specified target” using a “cordon and capture technique.”
According to a February ICRC report, they usually entered Iraqi homes “after dark, breaking down doors. . . . Sometimes they arrested all adult males, including elderly, handicapped, or sick people.” The military’s detention and interrogation system was soon overwhelmed by a huge population of civilian detainees, an estimated 85-90 percent of whom were of no intelligence value.
Rumsfeld, Cambone, and the Joint Chiefs responded to the crisis by sending Maj. Gen. Geoffrey Miller, commander of the US detention camp at Guantanamo, to Iraq in early September 2003. A follow-up team from Gitmo arrived soon after, bearing a copy of Rumsfeld’s revised “counter-resistance” interrogation procedures already approved for use on Al Qaeda and Taliban detainees.
Miller’s still-classified September 5, 2003 report on his trip (discussed in open Senate hearings) recommended that a guard force of military police at Abu Ghraib be subordinated to the military intelligence operation in the prison and trained “to set the conditions” for “successful interrogation and exploitation” of detainees. In his trip report, Miller noted that his recommended action was already “in progress.”
Joint Task Force 121
Unknown to the ICRC, the media, and all but a few select members of Congress, also operating at Abu Ghraib prison were elements of the secret Joint Task Force (JTF) 121, linked to the Bush-Rumsfeld-Cambone chain of command that controls the Special Access Program. This unit worked out an arrangement with military intelligence to sequester dozens of “ghost detainees” and conceal them from the ICRC, a blatant violation of the Geneva Convention.
This is perhaps why Rumsfeld, when he was asked early on in the scandal whether the protections of the Geneva Convention applied in Iraq, replied that it did not apply “precisely” — a judgment that was at variance with the administration’s public posture, suggesting there might be yet another secret presidential finding extending the hardline treatment authorized for Al Qaeda detainees to terrorist organizations operating within Iraq.
In recent Senate testimony, Harold Brown, a former defense secretary and member of Rumsfeld’s handpicked Schlesinger Panel to Review Department of Defense Detainee Operations, implied as much, noting that in Iraq “the Geneva Conventions continued to apply, according to the president’s decision, except for foreign terrorists–foreign to Iraq” (emphasis added). This loophole seems to have widened to include Iraqi nationals suspected of terrorism.
During the same Senate hearing, Rhode Island Democrat Jack Reed noted that in October 2003, “Secretary Rumsfeld, at the request of [then-CIA Director George] Tenet, ordered the military chain of command to deny the — at least the registration rights — of the Geneva Convention to an individual who I believe is an Iraqi citizen, part of Ansar al-Islam.”
Red Cross Appalled by ‘Purposeless Sadism’
According to the August 2004 report prepared by Maj. Gen. George Fay on the conduct of the military intelligence unit at Abu Ghraib, Sanchez approved an interrogation policy on September 14, 2003 that melded elements of JTF-121’s coercive techniques with elements from the Rumsfeld-approved Gitmo policy, despite knowing that neither conformed with the minimum standards of treatment required for protected persons under the Geneva Conventions.
Although the Sanchez policy was cosmetically revised at least twice to be less draconian, ICRC delegates visiting in mid-October “directly witnessed . . . the practice of keeping persons . . . completely naked in totally empty concrete cells, and in total darkness, allegedly for several consecutive days. . . . Other persons . . . allowed to dress following periods when then had been held naked . . . had been given women’s underwear to wear under their jumpsuit (men’s underwear was not distributed) which they felt to be humiliating.”
Appalled by these conditions, the ICRC “interrupted its visits and requested an explanation from the authorities. The military intelligence officer in charge of interrogation explained that this practice was ‘part of the process.'”
The overlap between this deliberate program to “condition” detainees for investigation and the supposedly off-the-reservation “purposeless sadism” demonstrated by the night-shift military police who are now standing trial, is unmistakable. So are the policy and personnel links to the secret “high-value” detainee techniques and secret counterterror program run by Rumsfeld and Cambone.
Bush, Rumsfeld and the Erosion of Humanitarian Law
By expanding the CIA’s secret campaign against Al Qaeda into the ranks of the professional military establishment, this administration has fostered an erosion of respect for international humanitarian law within the US military establishment, including a noxious disregard for the ICRC’s repeated efforts to document the abuse of detainees.
Possible criminal liability is at issue because at least five detainees have been tortured to death while under interrogation, and some of these deaths might not have occurred absent the promulgation of secret policies voiding Geneva protections for a widening circle of detainees — policies that were devised and implemented by senior Bush administration officials, up to and including the president.
Without the continuing failure, amounting to criminal negligence, to act immediately upon the ICRC and other reports of abuse, detainee deaths might have been prevented. And of course there is a good possibility that at least some who died were apprehended by mistake — not even the intended targets of the president’s get-tough policy. Indeed, the entire Abu Ghraib scandal, with its iconic images of abuse and lasting damage to US foreign policy, could have been averted.
Not only did Rumsfeld and Cambone withhold all information from Congress about the abuses until the publication of photos from Abu Ghraib made some level of disclosure inevitable, their sworn testimony in May 2004, soon after the scandal broke, reads like a deliberate effort to mislead Congress and forestall a deeper investigation of the president’s dirty war, raising the possibility that either one or both have lied under oath.
If Congress should ever be so bold as to probe the remaining patchwork of deception, it will likely find impeachable and potentially prosecutable offenses.
1. Letter to the President, February 1, 2002, p. 1.
2. Memorandum for Alberto R. Gonzales, Counsel to the President, August 1, 2002, p. 1-2.
Christopher Paine (email@example.com) is a senior analyst in the Natural Resources Defense Council’s nuclear program.
November/December 2004 pp. 78-80 (vol. 60, no. 06) © 2004 Bulletin of the Atomic Scientists. © 2004 Bulletin of the Atomic Scientists
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