05.15.08

The green light

Posted in you've got mail at 2:33 pm by nemo

From R-G
As the first anniversary of 9/11 approached, and a prized Guantánamo
detainee wouldn’t talk, the Bush administration’s highest-ranking
lawyers argued for extreme interrogation techniques, circumventing
international law, the Geneva Conventions, and the army’s own Field
Manual. The attorneys would even fly to Guantánamo to ratchet up the
pressure - then blame abuses on the military. Philippe Sands follows the
torture trail, and holds out the possibility of war crimes charges.

by Philippe Sands

Vanity Fair (May 2008)

The abuse, rising to the level of torture, of those captured and
detained in the war on terror is a defining feature of the presidency of
George W Bush. Its military beginnings, however, lie not in Abu Ghraib,
as is commonly thought, or in the “rendition” of prisoners to other
countries for questioning, but in the treatment of the very first
prisoners at Guantánamo. Starting in late 2002 a detainee bearing the
number 063 was tortured over a period of more than seven weeks. In his
story lies the answer to a crucial question: How was the decision made
to let the US military start using coercive interrogations at Guantánamo?

The Bush administration has always taken refuge behind a “trickle up”
explanation: that is, the decision was generated by military commanders
and interrogators on the ground. This explanation is false. The origins
lie in actions taken at the very highest levels of the administration -
by some of the most senior personal advisers to the president, the vice
president, and the secretary of defense. At the heart of the matter
stand several political appointees - lawyers - who, it can be argued,
broke their ethical codes of conduct and took themselves into a zone of
international criminality, where formal investigation is now a very real
option. This is the story of how the torture at Guantánamo began, and
how it spread.

“Crying. Angry. Yelled for Allah”.

One day last summer I sat in a garden in London with Dr Abigail Seltzer,
a psychiatrist who specializes in trauma victims. She divides her time
between Great Britain’s National Health Service, where she works
extensively with asylum seekers and other refugees, and the Medical
Foundation for the Care of Victims of Torture. It was
uncharacteristically warm, and we took refuge in the shade of some
birches. On a table before us were three documents. The first was a
November 2002 “action memo” written by William J (Jim) Haynes II, the
general counsel of the US Department of Defense, to his boss, Donald
Rumsfeld; the document is sometimes referred to as the Haynes Memo.
Haynes recommended that Rumsfeld give “blanket approval” to fifteen out
of eighteen proposed techniques of aggressive interrogation. Rumsfeld
duly did so, on December 02 2002, signing his name firmly next to the
word “Approved”. Under his signature he also scrawled a few words that
refer to the length of time a detainee can be forced to stand during
interrogation: “I stand for eight to ten hours a day. Why is standing
limited to four hours?”

The second document on the table listed the eighteen proposed techniques
of interrogation, all of which went against long-standing US military
practice as presented in the Army Field Manual. The fifteen approved
techniques included certain forms of physical contact and also
techniques intended to humiliate and to impose sensory deprivation. They
permitted the use of stress positions, isolation, hooding, twenty-hour
interrogations, and nudity. Haynes and Rumsfeld explicitly did not rule
out the future use of three other techniques, one of which was
waterboarding, the application of a wet towel and water to induce the
perception of drowning.

The third document was an internal log that detailed the interrogation
at Guantánamo of a man identified only as Detainee 063, whom we now know
to be Mohammed al-Qahtani, allegedly a member of the 9/11 conspiracy and
the so-called twentieth hijacker. According to this log, the
interrogation commenced on November 23 2002, and continued until well
into January. The techniques described by the log as having been used in
the interrogation of Detainee 063 include all fifteen approved by Rumsfeld.

“Was the detainee abused? Was he tortured?”, I asked Seltzer. Cruelty,
humiliation, and the use of torture on detainees have long been
prohibited by international law, including the Geneva Conventions and
their Common Article Three. This total ban was reinforced in 1984 with
the adoption of the Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, which criminalizes torture and
complicity in torture.

A careful and fastidious practitioner, Seltzer declined to give a
straight yes or no answer. In her view the definition of torture is
essentially a legal matter, which will turn on a particular set of
facts. She explained that there is no such thing as a medical definition
of torture, and that a doctor must look for pathology, the abnormal
functioning of the body or the mind. We reviewed the definition of
torture, as set out in the 1984 Convention, which is binding on 145
countries, including the United States. Torture includes “any act by
which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person”.

Seltzer had gone through the interrogation log, making notations. She
used four different colors to highlight moments that struck her as
noteworthy, and the grim document now looked bizarrely festive. Yellow
indicated episodes of abusive treatment. Pink showed where the
detainee’s rights were respected - where he was fed or given a break, or
allowed to sleep. Green indicated the many instances of medical
involvement, where al-Qahtani was given an enema or was hospitalized
suffering from hypothermia. Finally, blue identified what Seltzer termed
“expressions of distress”.

We talked about the methods of interrogation. “In terms of their
effects”, she said, “I suspect that the individual techniques are less
important than the fact that they were used over an extended period of
time, and that several appear to be used together: in other words, the
cumulative effect”. Detainee 063 was subjected to systematic sleep
deprivation. He was shackled and cuffed; at times, head restraints were
used. He was compelled to listen to threats to his family. The
interrogation leveraged his sensitivities as a Muslim: he was shown
pictures of scantily clad models, was touched by a female interrogator,
was made to stand naked, and was forcibly shaved. He was denied the
right to pray. A psychiatrist who witnessed the interrogation of
Detainee 063 reported the use of dogs, intended to intimidate “by
getting the dogs close to him and then having the dogs bark or act
aggressively on command”. The temperature was changed, and 063 was
subjected to extreme cold. Intravenous tubes were forced into his body,
to provide nourishment when he would not eat or drink.

We went through the marked-up document slowly, pausing at each blue
mark. Detainee 063’s reactions were recorded with regularity. I’ll
string some of them together to convey the impression:

Detainee began to cry. Visibly shaken. Very emotional. Detainee cried.
Disturbed. Detainee began to cry. Detainee bit the IV tube completely in
two. Started moaning. Uncomfortable. Moaning. Began crying hard
spontaneously. Crying and praying. Very agitated. Yelled. Agitated and
violent. Detainee spat. Detainee proclaimed his innocence. Whining.
Dizzy. Forgetting things. Angry. Upset. Yelled for Allah.

The blue highlights went on and on.

Urinated on himself. Began to cry. Asked God for forgiveness. Cried.
Cried. Became violent. Began to cry. Broke down and cried. Began to pray
and openly cried. Cried out to Allah several times. Trembled uncontrollably.

Was Detainee 063 subjected to severe mental pain or suffering? Torture
is not a medical concept, Seltzer reminded me. “That said”, she went on,
“over the period of 54 days there is enough evidence of distress to
indicate that it would be very surprising indeed if it had not reached
the threshold of severe mental pain”. She thought about the matter a
little more and then presented it a different way: “If you put twelve
clinicians in a room and asked them about this interrogation log, you
might get different views about the effect and long-term consequences of
these interrogation techniques. But I doubt that any one of them would
claim that this individual had not suffered severe mental distress at
the time of his interrogation, and possibly also severe physical distress.”

The Authorized Version

The story of the Bush administration’s descent down this path began to
emerge on June 22 2004. The administration was struggling to respond to
the Abu Ghraib scandal, which had broken a couple of months earlier with
the broadcast of photographs that revealed sickening abuse at the prison
outside Baghdad. The big legal guns were wheeled out. Alberto Gonzales
and Jim Haynes stepped into a conference room at the Eisenhower
Executive Office Building, next to the White House. Gonzales was
President Bush’s White House counsel and would eventually become
attorney general. Haynes, as Rumsfeld’s general counsel, was the most
senior lawyer in the Pentagon, a position he would retain until a month
ago, when he resigned - “returning to private life”, as a press release
stated. Gonzales and Haynes were joined by a third lawyer, Daniel
Dell’Orto, a career official at the Pentagon. Their task was to steady
the beat and make it clear that the events at Abu Ghraib were the
actions of a few bad eggs and had nothing to do with the broader
policies of the administration.

Gonzales and Haynes spoke from a carefully prepared script. They
released a thick folder of documents, segmented by lawyerly tabs. These
documents were being made public for the first time, a clear indication
of the gravity of the political crisis. Among the documents were the
Haynes Memo and the list of eighteen techniques that Seltzer and I would
later review. The log detailing the interrogation of Detainee 063 was
not released; it would be leaked to the press two years later.

For two hours Gonzales and Haynes laid out the administration’s
narrative. Al-Qaeda was a different kind of enemy, deadly and shadowy.
It targeted civilians and didn’t follow the Geneva Conventions or any
other international rules. Nevertheless, the officials explained, the
administration had acted judiciously, even as it moved away from a
purely law-enforcement strategy to one that marshaled “all elements of
national power”. The authorized version had four basic parts.

First, the administration had moved reasonably - with care and
deliberation, and always within the limits of the law. In February 2002
the president had determined, in accordance with established legal
principles, that none of the detainees at Guantánamo could rely on any
of the protections granted by Geneva, even Common Article Three. This
presidential order was the lead document, at Tab A. The administration’s
point was this: agree with it or not, the decision on Geneva concealed
no hidden agenda; rather, it simply reflected a clear-eyed reading of
the actual provisions. The administration, in other words, was doing
nothing more than trying to proceed by the book. The law was the law.

Relating to this was a second document, one that had been the subject of
media speculation for some weeks. The authors of this document, a legal
opinion dated August 01 2002, were two lawyers in the Justice
Department’s Office of Legal Counsel: Jay Bybee, who is now a federal
judge, and John Yoo, who now teaches law at Berkeley. Later it would
become known that they were assisted in the drafting by David Addington,
then the vice president’s lawyer and now his chief of staff. The
Yoo-Bybee Memo declared that physical torture occurred only when the
pain was “equivalent in intensity to the pain accompanying serious
physical injury, such as organ failure, impairment of bodily function,
or even death”, and that mental torture required “suffering not just at
the moment of infliction but … lasting psychological harm”.
Interrogations that did not reach these thresholds - far less stringent
than those set by international law - were allowed. Although findings
that issue from the Office of Legal Counsel at Justice typically carry
great weight, at the press conference Gonzales went out of his way to
decouple the Yoo-Bybee Memo from anything that might have taken place at
Guantánamo. The two lawyers had been asked, in effect, to stargaze, he
said. Their memo simply explored “the limits of the legal landscape”. It
included “irrelevant and unnecessary” discussion and never made it into
the hands of the president or of soldiers in the field. The memo did
not, said Gonzales, “reflect the policies that the administration
ultimately adopted”.

The second element of the administration’s narrative dealt with the
specific source of the new interrogation techniques. Where had the
initiative come from? The administration pointed to the military
commander at Guantánamo, Major General Michael E Dunlavey. Haynes would
later describe him to the Senate Judiciary Committee, during his failed
confirmation hearings for a judgeship in 2006, as “an aggressive major
general”. The techniques were not imposed or encouraged by Washington,
which had merely reacted to a request from below. They came as a result
of the identification locally of “key people” at Guantánamo, including
“a guy named al-Qahtani”. This man, Detainee 063, had proved able to
resist the traditional non-coercive techniques of interrogation spelled
out in the Army Field Manual, and as the first anniversary of 9/11
approached, an intelligence spike pointed to the possibility of new
attacks. “And so it is concluded at Guantánamo”, Dell’Orto emphasized,
reconstructing the event, “that it may be time to inquire as to whether
there may be more flexibility in the type of techniques we use on him”.
A request was sent from Guantánamo on October 11 2002, to the head of
the US Southern Command (SouthCom), General James T Hill. Hill in turn
forwarded Dunlavey’s request to General Richard Myers, the chairman of
the Joint Chiefs of Staff. Ultimately, Rumsfeld approved “all but three
of the requested techniques”. The official version was clear: Haynes and
Rumsfeld were just processing a request coming up the chain from Guantánamo.

The third element of the administration’s account concerned the legal
justification for the new interrogation techniques. This, too, the
administration said, had originated in Guantánamo. It was not the result
of legal positions taken by politically appointed lawyers in the upper
echelons of the administration, and certainly not the Justice
Department. The relevant document, also dated October 11, was in the
bundle released by Gonzales, a legal memo prepared by Lieutenant Colonel
Diane Beaver, the staff judge advocate at Guantánamo. That document -
described pointedly by Dell’Orto as a “multi-page, single-spaced legal
review” - sought to provide legal authority for all the interrogation
techniques. No other legal memo was cited as bearing on aggressive
interrogations. The finger of responsibility was intended to point at
Diane Beaver.

The fourth and final element of the administration’s official narrative
was to make clear that decisions relating to Guantánamo had no bearing
on events at Abu Ghraib and elsewhere. Gonzales wanted to “set the
record straight” about this. The administration’s actions were
inconsistent with torture. The abuses at Abu Ghraib were unauthorized
and unconnected to the administration’s policies.

Gonzales and Haynes laid out their case with considerable care. The only
flaw was that every element of the argument contained untruths.

The real story, pieced together from many hours of interviews with most
of the people involved in the decisions about interrogation, goes
something like this: The Geneva decision was not a case of following the
logic of the law but rather was designed to give effect to a prior
decision to take the gloves off and allow coercive interrogation; it
deliberately created a legal black hole into which the detainees were
meant to fall. The new interrogation techniques did not arise
spontaneously from the field but came about as a direct result of
intense pressure and input from Rumsfeld’s office. The Yoo-Bybee Memo
was not simply some theoretical document, an academic exercise in
blue-sky hypothesizing, but rather played a crucial role in giving those
at the top the confidence to put pressure on those at the bottom. And
the practices employed at Guantánamo led to abuses at Abu Ghraib.

The fingerprints of the most senior lawyers in the administration were
all over the design and implementation of the abusive interrogation
policies. Addington, Bybee, Gonzales, Haynes, and Yoo became, in effect,
a torture team of lawyers, freeing the administration from the
constraints of all international rules prohibiting abuse.

Killing Geneva

In the early days of 2002, as the number of al-Qaeda and Taliban
fighters captured in Afghanistan began to swell, the Number Three
official at the Pentagon was Douglas J Feith. As undersecretary of
defense for policy, he stood directly below Paul Wolfowitz and Donald
Rumsfeld. Feith’s job was to provide advice across a wide range of
issues, and the issues came to include advice on the Geneva Conventions
and the conduct of military interrogations.

I sat down with Feith not long after he left the government. He was
teaching at the school of foreign service at Georgetown University,
occupying a small, eighth-floor office lined with books on international
law. He greeted me with a smile, his impish face supporting a mop of
graying hair that seemed somehow at odds with his 54 years. Over the
course of his career Feith has elicited a range of reactions. General
Tommy Franks, who led the invasion of Iraq, once called Feith “the
fucking stupidest guy on the face of the earth”. Rumsfeld, in contrast,
saw him as an “intellectual engine”. In manner he is the Energizer
Bunny, making it hard to get a word in edgewise. After many false starts
Feith provided an account of the president’s decision on Geneva,
including his own contribution as one of its principal architects.

“This was something I played a major role in”, he began, in a tone of
evident pride. With the war in Afghanistan under way, lawyers in
Washington understood that they needed a uniform view on the
constraints, if any, imposed by Geneva. Addington, Haynes, and Gonzales
all objected to Geneva. Indeed, Haynes in December 2001 told the CentCom
admiral in charge of detainees in Afghanistan “to ‘take the gloves off’
and ask whatever he wanted” in the questioning of John Walker Lindh.
(Lindh, a young American who had become a Muslim and had recently been
captured in northern Afghanistan, bore the designation Detainee 001.)

A month later, the administration was struggling to adopt a position. On
January 9, John Yoo and Robert Delahunty, at the Justice Department,
prepared an opinion for Haynes. They concluded that the president wasn’t
bound by traditional international-law prohibitions. This encountered
strong opposition from Colin Powell and his counsel, William H Taft IV,
at the State Department, as well as from the Tjags - the military
lawyers in the office of the judge advocate general - who wanted to
maintain a strong US commitment to Geneva and the rules that were part
of customary law. On January 25, Alberto Gonzales put his name to a memo
to the president supporting Haynes and Rumsfeld over Powell and Taft.
This memo, which is believed to have been written by Addington,
presented a “new paradigm” and described Geneva’s “strict limitations on
questioning of enemy prisoners” as “obsolete”. Addington was
particularly distrustful of the military lawyers. “Don’t bring the Tjags
into the process - they aren’t reliable”, he was once overheard to say.

Feith took up the story. He had gone to see Rumsfeld about the issue,
accompanied by Myers. As they reached Rumsfeld’s office, Myers turned to
Feith and said, “We have to support the Geneva Conventions. If Rumsfeld
doesn’t go along with this, I’m going to contradict them in front of the
president.” Feith was surprised by this uncharacteristically robust
statement, and by the way Myers referred to the secretary bluntly as
“Rumsfeld”.

Douglas Feith had a long-standing intellectual interest in Geneva, and
for many years had opposed legal protections for terrorists under
international law. He referred me to an article he had written in 1985,
in The National Interest, setting out his basic view. Geneva provided
incentives to play by the rules; those who chose not to follow the
rules, he argued, shouldn’t be allowed to rely on them, or else the
whole Geneva structure would collapse. The only way to protect Geneva,
in other words, was sometimes to limit its scope. To uphold Geneva’s
protections, you might have to cast them aside.

But that way of thinking didn’t square with the Geneva system itself,
which was based on two principles: combatants who behaved according to
its standards received POW status and special protections, and everyone
else received the more limited but still significant protections of
Common Article Three. Feith described how, as he and Myers spoke with
Rumsfeld, he jumped protectively in front of the general. He reprised
his “little speech” for me. “There is no country in the world that has a
larger interest in promoting respect for the Geneva Conventions as law
than the United States”, he told Rumsfeld, according to his own account,
“and there is no institution in the US government that has a stronger
interest than the Pentagon”. So Geneva had to be followed? “Obeying the
Geneva Conventions is not optional”, Feith replied. “The Geneva
Convention is a treaty in force. It is as much part of the supreme law
of the United States as a statute.” Myers jumped in. “I agree completely
with what Doug said and furthermore it is our military culture. It’s not
even a matter of whether it is reciprocated - it’s a matter of who we are.”

Feith was animated as he relived this moment. I remained puzzled. How
had the administration gone from a commitment to Geneva, as suggested by
the meeting with Rumsfeld, to the president’s declaration that none of
the detainees had any rights under Geneva? It all turns on what you mean
by “promoting respect” for Geneva, Feith explained. Geneva didn’t apply
at all to al-Qaeda fighters, because they weren’t part of a state and
therefore couldn’t claim rights under a treaty that was binding only on
states. Geneva did apply to the Taliban, but by Geneva’s own terms
Taliban fighters weren’t entitled to POW status, because they hadn’t
worn uniforms or insignia. That would still leave the safety net
provided by the rules reflected in Common Article Three - but detainees
could not rely on this either, on the theory that its provisions applied
only to “armed conflict not of an international character”, which the
administration interpreted to mean civil war. This was new. In reaching
this conclusion, the Bush administration simply abandoned all legal and
customary precedent that regards Common Article Three as a minimal bill
of rights for everyone.

In the administration’s account there was no connection between the
decision on Geneva and the new interrogation rules later approved by
Rumsfeld for Detainee 063; its position on Geneva was dictated purely by
the law itself. I asked Feith, just to be clear: Didn’t the
administration’s approach mean that Geneva’s constraints on
interrogation couldn’t be invoked by anyone at Guantánamo? “Oh yes,
sure”, he shot back. Was that the intended result?, I asked.
“Absolutely”, he replied. I asked again: Under the Geneva Conventions,
no one at Guantánamo was entitled to any protection? “That’s the point”,
Feith reiterated. As he saw it, either you were a detainee to whom
Geneva didn’t apply or you were a detainee to whom Geneva applied but
whose rights you couldn’t invoke. What was the difference for the
purpose of interrogation?, I asked. Feith answered with a certain
satisfaction, “It turns out, none. But that’s the point.”

That indeed was the point. The principled legal arguments were a fig
leaf. The real reason for the Geneva decision, as Feith now made
explicit, was the desire to interrogate these detainees with as few
constraints as possible. Feith thought he’d found a clever way to do
this, which on the one hand upheld Geneva as a matter of law - the
speech he made to Myers and Rumsfeld - and on the other pulled the rug
out from under it as a matter of reality. Feith’s argument was so clever
that Myers continued to believe Geneva’s protections remained in force -
he was “well and truly hoodwinked”, one seasoned observer of military
affairs later told me.

Feith’s argument prevailed. On February 07 2002, President Bush signed a
memorandum that turned Guantánamo into a Geneva-free zone. As a matter
of policy, the detainees would be handled humanely, but only to the
extent appropriate and consistent with military necessity. “The
president said ‘humane treatment’ ”, Feith told me, inflecting the term
sourly, “and I thought that was okay. Perfectly fine phrase that needs
to be fleshed out, but it’s a fine phrase - ‘humane treatment’ ”. The
Common Article Three restrictions on torture or “outrages upon personal
dignity” were gone.

“This year I was really a player”, Feith said, thinking back on 2002 and
relishing the memory. I asked him whether, in the end, he was at all
concerned that the Geneva decision might have diminished America’s moral
authority. He was not. “The problem with moral authority”, he said, was
“people who should know better, like yourself, siding with the assholes,
to put it crudely”.

“I Was on a Timeline”

As the traditional constraints on aggressive interrogation were removed,
Rumsfeld wanted the right man to take charge of Joint Task Force 170,
which oversaw military interrogations at Guantánamo. Two weeks after the
decision on Geneva he found that man in Michael Dunlavey. Dunlavey was a
judge in the Court of Common Pleas in Erie, Pennsylvania, a Vietnam
veteran, and a major general in the reserves with a strong background in
intelligence.

Dunlavey met one-on-one with Rumsfeld at the end of February. They both
liked what they saw. When I met Dunlavey, now back at his office in
Erie, he described that initial meeting: “He evaluated me. He wanted to
know who I was. He was very focused on the need to get intelligence. He
wanted to make sure that the moment was not lost.” Dunlavey was a strong
and abrasive personality (”a tyrant”, one former jag told me), but he
was also a cautious man, alert to the nuances of instruction from above.
Succinctly, Dunlavey described the mission Rumsfeld had given him. “He
wanted me to ‘maximize the intelligence production’. No one ever said to
me, ‘The gloves are off’. But I didn’t need to talk about the Geneva
Conventions. It was clear that they didn’t apply.” Rumsfeld told
Dunlavey to report directly to him. To the suggestion that Dunlavey
report to SouthCom, Dunlavey heard Rumsfeld say, “I don’t care who he is
under. He works for me.”

He arrived at Guantánamo at the beginning of March. Planeloads of
detainees were being delivered on a daily basis, though Dunlavey soon
concluded that half of them had no intelligence value. He reported this
to Rumsfeld, who referred the matter to Feith. Feith, Dunlavey said,
resisted the idea of repatriating any detainees whatsoever. (Feith says
he made a series of interagency proposals to repatriate detainees.)

Dunlavey described Feith to me as one of his main points of contact.
Feith, for his part, had told me that he knew nothing about any specific
interrogation issues until the Haynes Memo suddenly landed on his desk.
But that couldn’t be right - in the memo itself Haynes had written, “I
have discussed this with the Deputy, Doug Feith and General Myers”. I
read the sentence aloud. Feith looked at me. His only response was to
tell me that I had mispronounced his name. “It’s Fythe”, he said. “Not
Faith”.

In June, the focus settled on Detainee 063, Mohammed al-Qahtani, a Saudi
national who had been refused entry to the United States just before
9/11 and was captured a few months later in Afghanistan. Dunlavey
described to me the enormous pressure he came under - from Washington,
from the top - to find out what al-Qahtani knew. The message, he said,
was: “Are you doing everything humanly possible to get this
information?” He received a famous Rumsfeld “snowflake”, a memo designed
to prod the recipient into action. “I’ve got a short fuse on this to get
it up the chain”, Dunlavey told me, “I was on a timeline”. Dunlavey held
eye contact for more than a comfortable moment. He said, “This guy may
have been the key to the survival of the US”.

The interrogation of al-Qahtani relied at first on long-established FBI
and military techniques, procedures sanctioned by the Field Manual and
based largely on building rapport. This yielded nothing. On August 8,
al-Qahtani was placed in an isolation facility to separate him from the
general detainee population. Pressure from Washington continued to
mount. How high up did it go?, I asked Dunlavey. “It must have been all
the way to the White House”, he replied.

Meanwhile, unbeknownst to Dunlavey and the others at Guantánamo,
interrogation issues had arisen in other quarters. In March 2002 a man
named Abu Zubaydah, a high-ranking al-Qaeda official, was captured in
Pakistan. CIA director George Tenet wanted to interrogate him
aggressively but worried about the risk of criminal prosecution. He had
to await the completion of legal opinions by the Justice Department, a
task that had been entrusted by Alberto Gonzales to Jay Bybee and John
Yoo. “It took until August to get clear guidance on what Agency officers
could legally do”, Tenet later wrote. The “clear guidance” came on
August 01 2002, in memos written by Bybee and Yoo, with input from
Addington. The first memo was addressed to Gonzales, redefining torture
and abandoning the definition set by the 1984 torture convention. This
was the Yoo-Bybee Memo made public by Gonzales nearly two years later,
in the wake of Abu Ghraib. Nothing in the memo suggested that its use
was limited to the CIA; it referred broadly to “the conduct of
interrogations outside of the United States”. Gonzales would later
contend that this policy memo did “not reflect the policies the
administration ultimately adopted”, but in fact it gave carte blanche to
all the interrogation techniques later recommended by Haynes and
approved by Rumsfeld. The second memo, requested by John Rizzo, a senior
lawyer at the CIA, has never been made public. It spells out the
specific techniques in detail. Dunlavey and his subordinates at
Guantánamo never saw these memos and were not aware of their contents.

The lawyers in Washington were playing a double game. They wanted
maximum pressure applied during interrogations, but didn’t want to be
seen as the ones applying it - they wanted distance and deniability.
They also wanted legal cover for themselves. A key question is whether
Haynes and Rumsfeld had knowledge of the content of these memos before
they approved the new interrogation techniques for al-Qahtani. If they
did, then the administration’s official narrative - that the pressure
for new techniques, and the legal support for them, originated on the
ground at Guantánamo, from the “aggressive major general” and his staff
lawyer - becomes difficult to sustain. More crucially, that knowledge is
a link in the causal chain that connects the keyboards of Feith and Yoo
to the interrogations of Guantánamo.

When did Haynes learn that the Justice Department had signed off on
aggressive interrogation? All indications are that well before Haynes
wrote his memo he knew what the Justice Department had advised the CIA
on interrogations and believed that he had legal cover to do what he
wanted. Everyone in the upper echelons of the chain of decision-making
that I spoke with, including Feith, General Myers, and General Tom Hill
(the commander of SouthCom), confirmed to me that they believed at the
time that Haynes had consulted Justice Department lawyers. Moreover,
Haynes was a close friend of Bybee’s. “Jim was tied at the hip with Jay
Bybee”, Thomas Romig, the army’s former judge advocate general, told me.
“He would quote him the whole time”. Later, when asked during Senate
hearings about his knowledge of the Yoo-Bybee Memo, Haynes would
variously testify that he had not sought the memo, had not shaped its
content, and did not possess a copy of it - but he carefully refrained
from saying that he was unaware of its contents. Haynes, with whom I met
on two occasions, will not speak on the record about this subject.

The Glassy-Eyed Men

As the first anniversary of 9/11 approached, Joint Task Force 170 was on
notice to deliver results. But the task force was not the only actor at
Guantánamo. The CIA had people there looking for recruits among the
detainees. The Defense Intelligence Agency (DIA) was interrogating
detainees through its humint (human intelligence) Augmentation Teams.
The FBI was carrying out its own traditional non-aggressive interrogations.

The source of the various new techniques has been the stuff of
speculation. In the administration’s official account, as noted,
everything trickled up from the ground at Guantánamo. When I suggested
to Mike Dunlavey that the administration’s trickle-up line was
counter-intuitive, he didn’t disabuse me. “It’s possible”, he said, in a
tone at once mischievous and unforthcoming, “that someone was sent to my
task force and came up with these great ideas”. One FBI special agent
remembers an occasion, before any new techniques had been officially
sanctioned, when military interrogators set out to question al-Qahtani
for 24 hours straight - employing a variation on a method that would
later appear in the Haynes Memo. When the agent objected, he said he was
told that the plan had been approved by “the secretary”, meaning Rumsfeld.

Diane Beaver, Dunlavey’s staff judge advocate, was the lawyer who would
later be asked to sign off on the new interrogation techniques. When the
administration made public the list, it was Beaver’s legal advice the
administration invoked. Diane Beaver gave me the fullest account of the
process by which the new interrogation techniques emerged. In our
lengthy conversations, which began in the autumn of 2006, she seemed
coiled up - mistreated, hung out to dry. Before becoming a military
lawyer Beaver had been a military police officer; once, while stationed
in Germany, she had visited the courtroom where the Nuremberg trials
took place. She was working as a lawyer for the Pentagon when the
hijacked airplane hit on 9/11, and decided to remain in the army to help
as she could. That decision landed her in Guantánamo.

It was clear to me that Beaver believed Washington was directly involved
in the interrogations. Her account confirmed what Dunlavey had
intimated, and what others have told me - that Washington’s views were
being fed into the process by people physically present at Guantánamo.
DIA personnel were among them. Later allegations would suggest a role
for three CIA psychologists.

During September a series of brainstorming meetings were held at
Guantánamo to discuss new techniques. Some of the meetings were led by
Beaver. “I kept minutes. I got everyone together. I invited. I
facilitated”, she told me. The sessions included representatives of the
DIA and the CIA Ideas came from all over. Some derived from personal
training experiences, including a military program known as sere
(Survival, Evasion, Resistance, and Escape), designed to help soldiers
persevere in the event of capture. Had sere been, in effect,
reverse-engineered to provide some of the eighteen techniques? Both
Dunlavey and Beaver told me that sere provided inspiration,
contradicting the administration’s denials that it had. Indeed, several
Guantánamo personnel, including a psychologist and a psychiatrist,
traveled to Fort Bragg, sere’s home, for a briefing.

Ideas arose from other sources. The first year of Fox TV’s dramatic
series 24 came to a conclusion in spring 2002, and the second year of
the series began that fall. An inescapable message of the program is
that torture works. “We saw it on cable”, Beaver recalled. “People had
already seen the first series. It was hugely popular.” Jack Bauer had
many friends at Guantánamo, Beaver added. “He gave people lots of ideas”.

The brainstorming meetings inspired animated discussion. “Who has the
glassy eyes?”, Beaver asked herself as she surveyed the men around the
room, thirty or more of them. She was invariably the only woman present
- as she saw it, keeping control of the boys. The younger men would get
particularly agitated, excited even. “You could almost see their dicks
getting hard as they got new ideas”, Beaver recalled, a wan smile
flickering on her face. “And I said to myself, You know what? I don’t
have a dick to get hard - I can stay detached.”

Not everyone at Guantánamo was enthusiastic. The FBI and the Naval
Criminal Investigative Service refused to be associated with aggressive
interrogation. They opposed the techniques. One of the NCIS
psychologists, Mike Gelles, knew about the brainstorming sessions but
stayed away. He was dismissive of the administration’s contention that
the techniques trickled up on their own from Guantánamo. “That’s not
accurate”, he said flatly. “This was not done by a bunch of people down
in Gitmo - no way”.

That view is buttressed by a key event that has received virtually no
attention. On September 25, as the process of elaborating new
interrogation techniques reached a critical point, a delegation of the
administration’s most senior lawyers arrived at Guantánamo. The group
included the president’s lawyer, Alberto Gonzales, who had by then
received the Yoo-Bybee Memo; Vice President Cheney’s lawyer, David
Addington, who had contributed to the writing of that memo; the CIA’s
John Rizzo, who had asked for a Justice Department sign-off on
individual techniques, including waterboarding, and received the second
(and still secret) Yoo-Bybee Memo; and Jim Haynes, Rumsfeld’s counsel.
They were all well aware of al-Qahtani. “They wanted to know what we
were doing to get to this guy”, Dunlavey told me, “and Addington was
interested in how we were managing it”. I asked what they had to say.
“They brought ideas with them which had been given from sources in DC”,
Dunlavey said. “They came down to observe and talk”. Throughout this
whole period, Dunlavey went on, Rumsfeld was “directly and regularly
involved”.

Beaver confirmed the account of the visit. Addington talked a great
deal, and it was obvious to her that he was a “very powerful man” and
“definitely the guy in charge”, with a booming voice and confident
style. Gonzales was quiet. Haynes, a friend and protégé of Addington’s,
seemed especially interested in the military commissions, which were to
decide the fate of individual detainees. They met with the intelligence
people and talked about new interrogation methods. They also witnessed
some interrogations. Beaver spent time with the group. Talking about the
episode even long afterward made her visibly anxious. Her hand tapped
and she moved restlessly in her chair. She recalled the message they had
received from the visitors: Do “whatever needed to be done”. That was a
green light from the very top - the lawyers for Bush, Cheney, Rumsfeld,
and the CIA. The administration’s version of events - that it became
involved in the Guantánamo interrogations only in November, after
receiving a list of techniques out of the blue from the “aggressive
major general” - was demonstrably false.

“A Dunk in the Water”

Two weeks after this unpublicized visit the process of compiling the
list of new techniques was completed. The list was set out in a
three-page memorandum from Lieutenant Colonel Jerald Phifer, dated
October 11 and addressed to Dunlavey.

The Phifer Memo identified the problem: “current guidelines” prohibited
the use of “physical or mental torture, threats, insults, or exposure to
inhumane treatment as a means of or aid to interrogation”. The
prohibition dated back to 1863 and a general order issued by Abraham
Lincoln.

The list of new interrogation techniques turned its back on this
tradition. The eighteen techniques were divided into three categories
and came with only rudimentary guidance. No limits were placed on how
many methods could be used at once, or for how many days in succession.
The detainee was to be provided with a chair. The environment should be
generally comfortable. If the detainee was uncooperative, you went to
Category One. This comprised two techniques, yelling and deception.

If Category I produced no results, then the military interrogator could
move to Category Two. Category Two included twelve techniques aimed at
humiliation and sensory deprivation: for instance, the use of stress
positions, such as standing; isolation for up to thirty days;
deprivation of light and sound; twenty-hour interrogations; removal of
religious items; removal of clothing; forcible grooming, such as the
shaving of facial hair; and the use of individual phobias, such as the
fear of dogs, to induce stress.

Finally came Category Three, for the most exceptionally resistant.
Category Three included four techniques: the use of “mild, non-injurious
physical contact”, such as grabbing, poking, and light pushing; the use
of scenarios designed to convince the detainee that death or severely
painful consequences were imminent for him or his family; exposure to
cold weather or water; and waterboarding. This last technique, which
powerfully mimics the experience of drowning, was later described by
Vice President Cheney as a “dunk in the water”.

By the time the memo was completed al-Qahtani had already been separated
from all other detainees for 64 days, in a cell that was “always flooded
with light”. An FBI agent described his condition the following month,
just as the new interrogation techniques were first being directed
against him: the detainee, a 2004 memo stated, “was talking to
non-existent people, reporting hearing voices, [and] crouching in a
corner of the cell covered with a sheet for hours on end”.

Ends and Means

Diane Beaver was insistent that the decision to implement new
interrogation techniques had to be properly written up and that it
needed a paper trail leading to authorization from the top, not from
“the dirt on the ground”, as she self-deprecatingly described herself.
“I just wasn’t comfortable giving oral advice”, she explained, as she
had been requested to do. “I wanted to get something in writing. That
was my game plan. I had four days. Dunlavey gave me just four days.” She
says she believed that senior lawyers in Washington would review her
written advice and override it if necessary. It never occurred to her
that on so important an issue she would be the one to provide the legal
assessment on which the entire matter would appear to rest - that her
word would be the last word. As far as she was concerned, getting the
proposal “up the command” was victory enough. She didn’t know that
people much higher up had already made their decisions, had the security
of secret legal cover from the Justice Department, and, although
confident of their own legal protection, had no intention of soiling
their hands by weighing in on the unpleasant details of interrogation.

Marooned in Guantánamo, Beaver had limited access to books and other
documents, although there was Internet access to certain legal
materials. She tried getting help from more experienced lawyers - at
SouthCom, the Joint Chiefs, the DIA, the jag School - but to no avail.

In the end she worked on her own, completing the task just before the
Columbus Day weekend. Her memo was entitled “Legal Review of Aggressive
Interrogation Techniques”. The key fact was that none of the detainees
were protected by Geneva, owing to Douglas Feith’s handiwork and the
president’s decision in February. She also concluded that the torture
convention and other international laws did not apply, conclusions that
a person more fully schooled in the relevant law might well have
questioned: “It was not my job to second-guess the president”, she told
me. Beaver ignored customary international law altogether. All that was
left was American law, which is what she turned to.

Given the circumstances in which she found herself, the memo has a
certain desperate, heroic quality. She proceeded methodically through
the eighteen techniques, testing each against the standards set by US
law, including the Eighth Amendment to the Constitution (which prohibits
“cruel and unusual punishment”), the federal torture statute, and the
Uniform Code of Military Justice. The common theme was that the
techniques were fine “so long as the force used could plausibly have
been thought necessary in a particular situation to achieve a legitimate
government objective, and it was applied in a good faith effort and not
maliciously or sadistically for the very purpose of causing harm”. That
is to say, the techniques are legal if the motivation is pure. National
security justifies anything.

Beaver did enter some important caveats. The interrogators had to be
properly trained. Since the law required “examination of all facts under
a totality of circumstances test”, all proposed interrogations involving
Category Two and Three methods had to “undergo a legal, medical,
behavioral science, and intelligence review prior to their
commencement”. This suggested concerns about these new techniques,
including whether they would be effective. But in the end she concluded,
I “agree that the proposed strategies do not violate applicable federal
law”. The word “agree” stands out - she seems to be confirming a policy
decision that she knows has already been made.

Time and distance do not improve the quality of the advice. I thought it
was awful when I first read it, and awful when I reread it.
Nevertheless, I was now aware of the circumstances in which Beaver had
been asked to provide her advice. Refusal would have caused difficulty.
It was also reasonable to expect a more senior review of her draft.
Beaver struck me as honest, loyal, and decent. Personally, she was
prepared to take a hard line on many detainees. She once described them
to me as “psychopaths. Skinny, runty, dangerous, lying psychopaths.” But
there was a basic integrity to her approach. She could not have
anticipated that there would be no other piece of written legal advice
bearing on the Guantánamo interrogations. She could not have anticipated
that she would be made the scapegoat.

Once, after returning to a job at the Pentagon, Beaver passed David
Addington in a hallway - the first time she had seen him since his visit
to Guantánamo. He recognized her immediately, smiled, and said, “Great
minds think alike”.

The “voco”

On October 11, Dunlavey sent his request for approval of new techniques,
together with Diane Beaver’s legal memo, to General Tom Hill, the
commander of SouthCom. Two weeks later, on October 25, Hill forwarded
everything to General Myers, the chairman of the Joint Chiefs, in
Washington. Hill’s cover letter contains a sentence - “Our respective
staffs, the Office of the Secretary of Defense, and Joint Task Force 170
have been trying to identify counter-resistant techniques that we can
lawfully employ” - which again makes it clear that the list of
techniques was no surprise to Rumsfeld’s office, whatever its later
claims. Hill also expressed serious reservations. He wanted Pentagon
lawyers to weigh in, and he explicitly requested that “Department of
Justice lawyers review the third category of techniques”.

At the level of the Joint Chiefs the memo should have been subject to a
detailed review, including close legal scrutiny by Myers’s own counsel,
Jane Dalton, but that never happened. It seems that Jim Haynes
short-circuited the approval process. Alberto Mora, the general counsel
of the navy, says he remembers Dalton telling him, “Jim pulled this
away. We never had a chance to complete the assessment.”

When we spoke, Myers confessed to being troubled that normal procedures
had been circumvented. He held the Haynes Memo in his hands, looking
carefully at the sheet of paper as if seeing it clearly for the first
time. He pointed: “You don’t see my initials on this”. Normally he would
have initialed a memo to indicate approval, but there was no
confirmation that Myers had seen the memo or formally signed off on it
before it went to Rumsfeld. “You just see I’ve ‘discussed’ it”, he said,
noting a sentence to that effect in the memo itself. “This was not the
way this should have come about”. Thinking back, he recalled the
“intrigue” that was going on, intrigue “that I wasn’t aware of, and Jane
wasn’t aware of, that was probably occurring between Jim Haynes, White
House general counsel, and Justice”.

Further confirmation that the Haynes Memo got special handling comes
from a former Pentagon official, who told me that Lieutenant General
Bantz Craddock, Rumsfeld’s senior military assistant, noticed that it
was missing a buck slip, an essential component that shows a document’s
circulation path, and which everyone was supposed to initial. The Haynes
Memo had no “legal chop”, or signature, from the general counsel’s
office. It went back to Haynes, who later signed off with a note that
said simply, “Good to go”.

Events moved fast as the process was cut short. On November 4, Dunlavey
was replaced as commander at Guantánamo by Major General Geoffrey
Miller. On November 12 a detailed interrogation plan was approved for
al-Qahtani, based on the new interrogation techniques. The plan was sent
to Rumsfeld for his personal approval, General Hill told me.

Ten days later an alternative plan, prepared by Mike Gelles and others
at the NCIS and elsewhere, using traditional non-aggressive techniques,
was rejected. By then the FBI had communicated its concerns to Haynes’s
office about developments at Guantánamo. On November 23, well before
Rumsfeld gave formal written approval to the Haynes Memo, General Miller
received a “voco” - a vocal command - authorizing an immediate start to
the aggressive interrogation of al-Qahtani. No one I spoke with,
including Beaver, Hill, and Myers, could recall who had initiated the
voco, but an army investigation would state that it was likely Rumsfeld,
and he would not have acted without Haynes’s endorsement.

Al-Qahtani’s interrogation log for Saturday, November 23, registers the
immediate consequence of the decision to move ahead. “The detainee
arrives at the interrogation booth His hood is removed and he is bolted
to the floor”.

Reversal

Four days after the voco, Haynes formally signed off on his memo. He
recommended, as a matter of policy, approval of fifteen of the eighteen
techniques. Of the four techniques listed in Category Three, however,
Haynes proposed blanket approval of just one: mild non-injurious
physical contact. He would later tell the Senate that he had
“recommended against the proposed use of a wet towel” - that is, against
waterboarding - but to the contrary, in his memo he stated that “all
Category Three techniques may be legally available”. Rumsfeld placed his
name next to the word “Approved” and wrote the jocular comment that may
well expose him to difficulties in the witness stand at some future time.

As the memo was being approved, the FBI communicated serious concerns
directly to Haynes’s office. Then, on December 17, Dave Brant, of the
NCIS, paid a surprise visit to Alberto Mora, the general counsel of the
navy. Brant told him that NCIS agents had information that abusive
actions at Guantánamo had been authorized at a “high level” in
Washington. The following day Mora met again with Brant. Mike Gelles
joined them and told Mora that the interrogators were under
extraordinary pressure to achieve results. Gelles described the
phenomenon of “force drift”, where interrogators using coercion come to
believe that if some force is good, then more must be better. As
recounted in his official “Memorandum for Inspector General, Department
of the Navy”, Mora visited Steve Morello, the army’s general counsel,
and Tom Taylor, his deputy, who showed him a copy of the Haynes Memo
with its attachments. The memorandum describes them as demonstrating
“great concern”. In the course of a long interview Mora recalled Morello
“with a furtive air” saying, “Look at this. Don’t tell anyone where you
got it.” Mora was horrified by what he read. “I was astounded that the
secretary of defense would get within 100 miles of this issue”, he said.
(Notwithstanding the report to the inspector general, Morello denies
showing Mora a copy of the Haynes Memo.)

On December 20, Mora met with Haynes, who listened attentively and said
he would consider Mora’s concerns. Mora went away on vacation, expecting
everything to be sorted out. It wasn’t: Brant soon called to say the
detainee mistreatment hadn’t stopped. On January 09 2003, Mora met
Haynes for a second time, expressing surprise that the techniques hadn’t
been stopped. Haynes said little in response, and Mora felt he had made
no headway. The following day, however, Haynes called to say that he had
briefed Rumsfeld and that changes were in the offing. But over the next
several days no news came.

On the morning of Wednesday, January 15, Mora awoke determined to act.
He would put his concerns in writing in a draft memorandum for Haynes
and Dalton. He made three simple points. One: the majority of the
Category Two and Three techniques violated domestic and international
law and constituted, at a minimum, cruel and unusual treatment and, at
worst, torture. Two: the legal analysis by Diane Beaver had to be
rejected. Three: he “strongly non-concurred” with these interrogation
techniques. He delivered the draft memo to Haynes’s office. Two hours
later, at about five pm on January 15, Haynes called Mora. “I’m pleased
to tell you the secretary has rescinded the authorization”, he said.

The abusive interrogation of al-Qahtani lasted a total of 54 days. It
ended not on January 12, as the press was told in June 2004, but three
days later, on January 15. In those final three days, knowing that the
anything-goes legal regime might disappear at any moment, the
interrogators made one last desperate push to get something useful out
of al-Qahtani. They never did. By the end of the interrogation
al-Qahtani, according to an army investigator, had “black coals for eyes”.

The Great Migration

Mike Gelles, of the NCIS, had shared with me his fear that the
al-Qahtani techniques would not simply fade into history - that they
would turn out to have been horribly contagious. This “migration” theory
was controversial, because it potentially extended the responsibility of
those who authorized the Guantánamo techniques to abusive practices
elsewhere. John Yoo has described the migration theory as “an exercise
in hyperbole and partisan smear”.

But is it? In August 2003, Major General Miller traveled from Guantánamo
to Baghdad, accompanied by Diane Beaver. They visited Abu Ghraib and
found shocking conditions of near lawlessness. Miller made
recommendations to Lieutenant General Ricardo Sanchez, the commander of
coalition forces in Iraq. On September 14, General Sanchez authorized an
array of new interrogation techniques. These were vetted by his staff
judge advocate, who later told the Senate Armed Services Committee that
operating procedures and policies “in use in Guantánamo Bay” had been
taken into account. Despite the fact that Geneva applied in Iraq,
General Sanchez authorized several techniques that were not sanctioned
by the Field Manual - but were listed in the Haynes Memo. The abuses for
which Abu Ghraib became infamous began one month later.

Three different official investigations in the space of three years have
confirmed the migration theory. The August 2006 report of the Pentagon’s
inspector general concluded unequivocally that techniques from
Guantánamo had indeed found their way to Iraq. An investigation overseen
by former secretary of defense James R Schlesinger determined that
“augmented techniques for Guantanamo migrated to Afghanistan and Iraq
where they were neither limited nor safeguarded”.

Jim Haynes and Donald Rumsfeld may have reversed themselves about
al-Qahtani in January 2003, but the death blow to the administration’s
outlook did not occur for three more years. It came on June 29 2006,
with the US Supreme Court’s ruling in Hamdan vs Rumsfeld, holding that
Guantánamo detainees were entitled to the protections provided under
Geneva’s Common Article Three. The Court invoked the legal precedents
that had been sidestepped by Douglas Feith and John Yoo, and laid bare
the blatant illegality of al-Qahtani’s interrogation. A colleague having
lunch with Haynes that day described him as looking “shocked” when the
news arrived, adding, “He just went pale”. Justice Anthony Kennedy,
joining the majority, pointedly observed that “violations of Common
Article Three are considered ‘war crimes’ ”.

Jim Haynes appears to remain a die-hard supporter of aggressive
interrogation. Shortly after the Supreme Court decision, when he
appeared before the Senate Judiciary Committee, Senator Patrick Leahy
reminded him that in 2003 Haynes had said there was “no way” that Geneva
could apply to the Afghan conflict and the war on terror. “Do you now
accept that you were mistaken in your legal and policy determinations?”,
Leahy asked. Haynes would say only that he was bound by the Supreme
Court’s decision.

As the consequences of Hamdan sank in, the instinct for
self-preservation asserted itself. The lawyers got busy. Within four
months President Bush signed into law the Military Commissions Act. This
created a new legal defense against lawsuits for misconduct arising from
the “detention and interrogation of aliens” between September 11 2001,
and December 30 2005. That covered the interrogation of al-Qahtani, and
no doubt much else. Signing the bill on October 17 2006, President Bush
explained that it provided “legal protections that ensure our military
and intelligence personnel will not have to fear lawsuits filed by
terrorists simply for doing their jobs”.

In a word, the interrogators and their superiors were granted immunity
from prosecution. Some of the lawyers who contributed to this
legislation were immunizing themselves. The hitch, and it is a big one,
is that the immunity is good only within the borders of the United States.

A Tap on the Shoulder

The table in the conference room held five stacks of files and papers,
neatly arranged and yellow and crisp with age. Behind them sat an
elderly gentleman named Ludwig Altstötter, rosy-cheeked and cherubic.
Ludwig is the son of Josef Altstötter, the lead defendant in the 1947
case United States of America vs Josef Altstoetter et al, which was
tried in Germany before a US military tribunal. The case is famous
because it appears to be the only one in which lawyers have ever been
charged and convicted for committing international crimes through the
performance of their legal functions. It served as the inspiration for
the Oscar-winning 1961 movie Judgment at Nuremberg, whose themes are
alluded to in Marcel Ophuls’s classic 1976 film on wartime atrocities,
The Memory of Justice, which should be required viewing but has been
lost to a broader audience. Nuremberg was, in fact, where Ludwig and I
were meeting.

The Altstötter case had been prosecuted by the Allies to establish the
principle that lawyers and judges in the Nazi regime bore a particular
responsibility for the regime’s crimes. Sixteen lawyers appeared as
defendants. The scale of the Nazi atrocities makes any factual
comparison with Guantánamo absurd, a point made to me by Douglas Feith,
and with which I agree. But I wasn’t interested in drawing a facile
comparison between historical episodes. I wanted to know more about the
underlying principle.

Josef Altstötter had the misfortune, because of his name, to be the
first defendant listed among the sixteen. He was not the most important
or the worst, although he was one of the ten who were in fact convicted
(four were acquitted, one committed suicide, and there was one
mistrial). He was a well-regarded member of society and a high-ranking
lawyer. In 1943 he joined the Reich Ministry of Justice in Berlin, where
he served as a Ministerialdirektor, the chief of the
civil-law-and-procedure division. He became a member of the SS in 1937.
The US Military Tribunal found him guilty of membership in that criminal
organization - with knowledge of its criminal acts - and sentenced him
to five years in prison, which he served in full. He returned to legal
practice in Nuremberg and died in 1979. Ludwig Altstötter had all the
relevant documents, and he generously invited me to go over them with
him in Nuremberg.

I took Ludwig to the most striking passage in the tribunal’s judgment.
“He gave his name as a soldier and a jurist of note and so helped to
cloak the shameful deeds of that organisation from the eyes of the
German people”. The tribunal convicted Altstötter largely on the basis
of two letters. Ludwig went to the piles on the table and pulled out
fading copies of the originals. The first, dated May 03 1944, was from
the chief of the SS intelligence service to Ludwig’s father, asking him
to intervene with the regional court of Vienna and stop it from ordering
the transfer of Jews from the concentration camp at Theresienstadt back
to Vienna to appear as witnesses in court hearings. The second letter
was Altstötter’s response, a month later, to the president of the court
in Vienna. “For security reasons”, he wrote, “these requests cannot be
granted”. The US Military Tribunal proceeded on the basis that
Altstötter would have known what the concentration camps were for.

The words “security reasons” reminded me of remarks by Jim Haynes at the
press conference with Gonzales: “Military necessity can sometimes allow
… warfare to be conducted in ways that might infringe on the otherwise
applicable articles of the Convention”. Haynes provided no legal
authority for that proposition, and none exists. The minimum rights of
detainees guaranteed by Geneva and the torture convention can never be
overridden by claims of security or other military necessity. That is
their whole purpose.

Mohammed al-Qahtani is among the first six detainees scheduled to go on
trial for complicity in the 9/11 attacks; the Bush administration has
announced that it will seek the death penalty. Last month, President
Bush vetoed a bill that would have outlawed the use by the CIA of the
techniques set out in the Haynes Memo and used on al-Qahtani. Whatever
he may have done, Mohammed al-Qahtani was entitled to the protections
afforded by international law, including Geneva and the torture
convention. His interrogation violated those conventions. There can be
no doubt that he was treated cruelly and degraded, that the standards of
Common Article Three were violated, and that his treatment amounts to a
war crime. If he suffered the degree of severe mental distress
prohibited by the torture convention, then his treatment crosses the
line into outright torture. These acts resulted from a policy decision
made right at the top, not simply from ground-level requests in
Guantánamo, and they were supported by legal advice from the president’s
own circle.

Those responsible for the interrogation of Detainee 063 face a real risk
of investigation if they set foot outside the United States. Article
Four of the torture convention criminalizes “complicity” or
“participation” in torture, and the same principle governs violations of
Common Article Three.

It would be wrong to consider the prospect of legal jeopardy unlikely. I
remember sitting in the House of Lords during the landmark Pinochet
case, back in 1999 - in which a prosecutor was seeking the extradition
to Spain of the former Chilean head of state for torture and other
international crimes - and being told by one of his key advisers that
they had never expected the torture convention to lead to the former
president of Chile’s loss of legal immunity. In my efforts to get to the
heart of this story, and its possible consequences, I visited a judge
and a prosecutor in a major European city, and guided them through all
the materials pertaining to the Guantánamo case. The judge and
prosecutor were particularly struck by the immunity from prosecution
provided by the Military Commissions Act. “That is very stupid”, said
the prosecutor, explaining that it would make it much easier for
investigators outside the United States to argue that possible war
crimes would never be addressed by the justice system in the home
country - one of the trip wires enabling foreign courts to intervene.
For some of those involved in the Guantánamo decisions, prudence may
well dictate a more cautious approach to international travel. And for
some the future may hold a tap on the shoulder.

“It’s a matter of time”, the judge observed. “These things take time”.
As I gathered my papers, he looked up and said, “And then something
unexpected happens, when one of these lawyers travels to the wrong place”.

_____

Philippe Sands is an international lawyer at the firm Matrix Chambers
and a professor at University College London. His latest book is Torture
Team: Rumsfeld’s Memo and the Betrayal of American Values (Palgrave
Macmillan).

http://www.vanityfair.com/politics/features/2008/05/guantanamo200805

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