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Torture From the Top Down: Of Memos and Rotting Fish

JURIST Special Guest Columnist Shayana Kadidal, senior managing attorney of the Guantanamo project at the Center for Constitutional Rights, says that the recently-released 2003 DOJ memo on military interrogations written by then deputy assistant attorney general John Yoo was no exercise in blue-sky hypothesizing, but rather one of a series of key government memos - many still undisclosed - that gave those at the highest levels of the US government the confidence to put pressure on those at the bottom to adopt abusive interrogation techniques subversive of generations of military culture and sound interrogation practice...

Last week saw the release of a previously-classified torture memo of March 14, 2003, authored by John Yoo. The memo (here are parts 1 and 2) was declassified in the face of a judicial inquiry into why it was not disclosed as part of the torture FOIA brought by our organization, the Center for Constitutional Rights, as well as the ACLU, PHR, and two veterans groups. Almost as astonishing is an excellent article in the latest issue of Vanity Fair by another lawyer, Philippe Sands Q.C., that details the evolution of the Bush administration’s torture policies up through early 2003 - policies which culminated in the "First Special Interrogation Plan" devised for our client Mohammed al Qahtani, now a capital defendant in the military commissions.

Those torture policies were the predictable result of our government's response to 9/11. Whenever intelligence and law enforcement agencies are caught off guard, as they were by the 9/11 attacks and by the size and strength of the insurgency in Iraq, governments have responded by sweeping huge numbers of people into detention without real cause for suspicion, based on profiling criteria – being Arab in Afghanistan, being Sunni in the wrong Baghdad neighborhood – and then relying on the interrogation process to find the suspects from among the mass of detainees. It happened domestically here after 9/11 with immigration detentions, it happened in Afghanistan and it happened in Iraq. And while everyone knows that sweeps end up punishing the innocent, they also generate pressure to torture – because the "sweep-first-and-ask-questions-later" policy puts tremendous pressure on the interrogation process to make wheat out of chaff. Abuses predictably follow.

Like a law of bureaucratic physics, the process generates the pressure – but did this manifest itself from the bottom up, or the top down? Since the invisible hand of history always works through the actions of real people, we must ask: was the torture revolution the product of the masses or the vanguard? Did the Yoo memos reflect a desire to defend what soldiers and CIA officers in the field had already started doing, as the administration has implied, or did pressure from political officials in Washington drive a change in interrogation policy on the ground?

Professor Sands' detective work brilliantly shows that the "trickle up" theory that the administration has consistently put forward – that the torture memos were shaped in response to the demands of the interrogation experts working on the ground – is nonsense:
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.
As the indispensable Marty Lederman points out, the informal advice given to people on the ground, so brilliantly exposed by Sands, "almost certainly served as the go-ahead" for torture that preceded the issuance of formal written opinions from the Office of Legal Counsel and Department of Defense. The process was anything but bottom-up. This may have been obvious to anyone who has noted the many similarities between the techniques used in Abu Ghraib and the harrowing tales of released detainees from Guantánamo. Perhaps not surprisingly, John Yoo, interviewed in Esquire on Wednesday, himself is one of the few people who does not recognize a connection:
"The memo released yesterday does not apply to Iraq. It applied to interrogations of al Qaeda detained at Guantánamo Bay. I don't [necessarily] agree that the methods did migrate to Iraq, because I don’t know for a fact that they did. The analysis of the memo released yesterday was not to apply to Iraq, and we made clear in other settings that the Geneva Conventions fully applied to the war in Iraq. There was no intention or desire that the memo released yesterday apply to Iraq."
This makes Yoo the last person on earth to fail to realize that the techniques developed at Guantánamo migrated to Abu Ghraib. We've long known that Maj. Gen. Geoffrey Miller, commander at Guantánamo during some of the worst interrogation abuses there (including the brutal interrogations of Mohammed al Qahtani), was sent to Iraq with an imperative to increased the flow of intelligence from Abu Ghraib prisoners and told subordinates that he was going to "Gitmoize" interrogation practices there. Indeed, we know from Jane Mayer's work that Miller was secretly briefed on the conclusions of this newly-released March 14, 2003 Yoo memo before his transfer to Abu Ghraib in August 2003.

The techniques themselves tell the story. Systematic use of sleep deprivation, hypothermia, intimidation by dogs, and nudity and other sexualized humiliation techniques — all were present in both facilities. And the majority of these techniques were obviously calculated to humiliate Muslim men (though logic would dictate that any such techniques could just as well have been calculated to make the Muslim world despise the United States). It's as if a memo were written about how to break Muslim detainees down psychologically. One day perhaps that memo (likely based on Raphael Patai's "The Arab Mind") will see the light of day.

Speaking of which, we know that many other specific memos exist but have yet to be declassified or leaked to the public:
  • a 2001 directive to CIA authorizing it to set up overseas detention facilities;

  • an August 2002 authorizing CIA to use specific interrogation methods (including waterboarding);

  • a memo of October 23, 2001, arguing that the Posse Comitatus Act, which places restrictions on the use of the armed forces to quell unrest within the United States, cannot bind the President in efforts to "prevent and deter terrorism" domestically, and arguing that the Fourth Amendment generally does not place restrictions on such presidential military activities domestically (keep in mind the NSA is a branch of the Department of Defense, and protections against indiscriminate warrantless wiretapping derive from the Fourth Amendment);

  • according to the administration, a separate memo justifying the legality of the NSA Program (James Risen's book (State of War) on the program cites to "a series of secret legal opinions").
The fact that these memos remain classified at this point is absurd; equally absurd is the fact they seem still hidden from Congress (how, for instance, can legislation validating aspects of the NSA program remain on the table so long as Congress has not examined the last two memos above). The very existence of the October 23, 2001 memo is only known to us because it was cited in other Yoo memos which have appeared over the years. The Posse Comitatus element of the October 23 memo was revealed because it was cited in a footnote in Jay Bybee's leaked memo of February 26, 2002 on the law governing interrogation of detainees in Afghanistan; the memo released this week cites the same October 23 memo for the Fourth Amendment point. I suppose we should be thankful that Yoo cites himself so much, although that habit (a favorite of law professors!) also meant that his bad advice spread from issue to issue as easily as the abusive interrogation practices he was an apologist for spread from place to place.

And if we trace the bad advice back in time, it all returns to one point of origin: the series of initial memos issued in the Fall 2001 advocating the position that the executive enjoys essentially unlimited power to defend the United States from threats, and that Congress fundamentally lacks the constitutional authority to check or regulate his exercise of power in any way. While the actual text of the Constitution begs to differ in several places, the just-released Yoo memo seems willfully blind to that: it cites only once to the provisions of Article I which specifically assign to Congress the power to make rules for governing and regulating the armed forces, and not once to those giving Congress the power to define and punish war crimes. Indeed, a large chunk of the new memo is dedicated to the proposition that criminal statutes are inapplicable to government officials generally.

The true outrage is when federal judges accept these theories about law-free zones, place huge gaping holes in the Geneva Conventions, buy into the idea of executive military discretion to wiretap and torture rooted in an imaginary uncheckable power to move troops on the battlefield, and in general acquiesce to the policies of the executive. And, ironically enough, several of the guys who either did (Michael Chertoff) or should have (Jay Bybee) checked off on Yoo's memo were people who President Bush named to the federal bench.

The "trickle-up" theory of torture – blaming abusive interrogation on the few bad (enlisted) apples, and their immediate supervisors who neglected to rein in "animal house on the night shift" – has always been nonsense. The fish rots from the head, and this memo is just a bit more proof that the torture policy emanated from the swamp of Washington, D.C. – not the bowels of Abu Ghraib.

But the fish will have a new head in nine months. And upon that new head will fall intense public pressure to continue some of the same misguided preventative policies of the past seven years. Those policies naturally generate tremendous pressure in favor of abusive interrogation techniques. The next President will also face enormous pressure to use the products of interrogation under torture against defendants in the military commissions system the current administration is rushing to get underway—a system whose raison d'etre is the admissibility of torture evidence. Will Americans remember this next year, when Bush and his cronies go back to mismanaging private sector enterprises? Or will the story of how a few corrupt conspirators in the White House and OLC managed to undo generations of military culture and sound interrogation practice and replace them with a culture of torture become the new “animal house on the night shift” trope – distracting us from the fuller truth, and letting us miss the pressures that might even afflict that very nice Mr. Obama should he occupy the throne of the Presidency come next January?

Shayana Kadidal is senior managing attorney of the Guantánamo project at the Center for Constitutional Rights.

April 07, 2008

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Generally, opinions of the Justice Department's Office of Legal Counsel (OLC) have the force of law over the entire Executive Branch unless overturned by the federal courts or rescinded by the President, the Attorney General, or a superceding OLC opinion. To have classified the "torture" memos for so many years essentially created a body of secret laws. Ordinary citizens could not challenge these secret laws, or the flawed reasoning behind them, because only a few elite Bush officials knew they existed.

The misuse of the Executive Branch's power to classify government documents is frighteningly anti-democratic. And when one looks into the substance of the memos that the Bush administration relied upon, the clear contempt for human rights and democratic principles is palpable. One should not forget to view the torture memos in context with a timeline wherein the Bush administration withdrew its signature from the Rome Statute establishing the International Criminal Court (ICC) and then slipped themselves into the definitional section at 2013(4) of the innocuous-sounding American Service-Members' Protection Act. These acts bear witness that Bush administration officials sought immunity from war crime prosecution under either federal law or the ICC. In hindsight, it is clear they intended to violate serious criminal statutes from the beginning.

It's time to shove Bush's Humpty Dumpty immunity off the wall. The Republican-controlled Congress ran out of time before it could create a zone of immunity from prosecution under the federal anti-torture statutes. Despite all the statutory tinkering President Bush's friends in Congress did with the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, a pristine torture conspiracy provision quietly awaits invocation at 18 USC 2340A(c).

Yes, we all know in advance that the Bill O'Reillys and the Rush Limbaughs will shriek into their microphones that there was no conspiracy or that the torture conspiracy statute is inapplicable. Maybe they will even accuse lawyers who point out the anti-torture statute as engaging in "lawfare" or treasonous support of terrorism.

But those of us who know the law and still hope to uphold our oaths of admission to practice law cannot abandon our duty to support the Constitution and the rule of law. Upholding our oaths has nothing to do with treason or giving material support to terrorism. All those detainees at Guantanamo could be prosecuted in U.S. District Courts under existing federal statutes. In fact, quite a few are going to be prosecuted in President Cuban kangaroo courts with conspiracy. What an ironic situation appears from comparing the projected conspiracy charges.

One might suppose that the conspiracy charges against the detainees would be easier to prove than the conspiracy charges that should be brought against the Bush torture co-conspirators. On the one hand, the Guantanamo detainees are faced with classified evidence, hearsay evidence and evidence gathered through the use of torture. But, on the other hand, the Bush torture co-conspirators left behind signed memos identifying the very federal statutes they were agreeing to violate. Couple the autopsy reports and the corpses of those who were tortured to death based upon the authority of the torture memos. It's going to be much easier to prove conspiracy charges against the Bush officials than the Guantanamo detainees. Bush's military prosecutors in Guantanamo are going to be the people who look like paranoid "conspiracy theorists."

It's time for Congress to get some courage and hold hearings for gathering evidence to hand over to federal prosecutors once Michael Mukasey is gone from the Justice Department and no longer able to impede long overdue justice.

Nicholas M. Jackson, J.D., LL.M.
Florida Bar No. 167983

April 07, 2008  


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