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| From the issue dated January 21, 2005 |
Torture's Paper Trail
A new collection of government memoranda, some written by professors, shows how officials justified prisoner abuse in the campaign against terrorism|
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Long before the world learned about the shocking abuses in Iraq's Abu Ghraib prison, lawyers and officials in the Bush administration were quietly circulating memos that laid the groundwork for using torture in the campaign against terrorism. Until now, those documents have been revealed in bits and pieces, making it difficult to trace to what extent the rampant abuses in Abu Ghraib, Guantánamo Bay, and other prisons were aberrations, or the carefully constructed policy of the United States.
But later this month, readers will be able to see for themselves how a policy designed to extract information from suspected terrorists became a legal rationale for torture. The answers are contained in a 1,300-page collection compiled by researchers at New York University and titled The Torture Papers: The Road to Abu Ghraib (Cambridge University Press).
The report was edited by Karen J. Greenberg, executive director of NYU's Center on Law and Security, and Joshua L. Dratel, a lawyer who is defending a Guantánamo detainee who has sued the government over his alleged abuse. It includes dozens of memos written by lawyers for the U.S. Departments of Defense and Justice.
The collection will very likely intensify heated debates over the proper treatment of suspected terrorists and the extent to which the United States should be bound by international laws. The debate is already roiling through not only military and government circles, but also the halls of academe, with some legal scholars under fire for their roles in drafting the controversial memos.
Kenneth Roth, executive director of Human Rights Watch, an international research and advocacy group, calls the torture report's publication "enormously important" as a first step toward an independent investigation of abuse.
"The memos reflect an environment created at the top of the Bush administration that facilitated, if not encouraged, the use of abusive interrogation techniques that led to the abuses at Abu Ghraib," says Mr. Roth.
Some experts have questioned the reliability of information extracted under extreme pressure. They have also raised the issue of how torture affects the persons and nations instigating it. As the report's introduction puts it, if torture is allowed to occur, "What will be the spiritual cost, the overall damage, to the character of the nation?"
The Torture Papers is the first single compilation of the memoranda tracing the development of the Bush administration's policy on torture. They paint a detailed and disturbing picture of the lengths to which government lawyers went to justify harsh interrogation practices in Iraq, Afghanistan, and Guantánamo Bay. In a nation still reeling from the September 11 terrorist attacks, many people found it hard to fault government officials for aggressively seeking information that might save American lives. But as reports of prison abuses, including torture, started to surface, so did accusations that the United States had gone too far, possibly even committing war crimes.
In their introduction, the editors argue that "not only did the lawyers and policy makers knowingly overstep legal doctrine, but they did so against the advice of individuals in their midst, notably Secretary of State Colin L. Powell and William H. Taft, legal adviser to the secretary of state."
The report's publication will come just weeks after the U.S. Justice Department backed off of its earlier definition of torture, which was limited to acts that cause severe pain equivalent to that associated with organ failure or death. That decision late last December to broaden the definition of torture was seen by many as a way to pre-empt, or at least soften, the blows that were sure to be aimed at one of the key players in the torture memos, Alberto R. Gonzales, the White House counsel.
Mr. Gonzales's role in helping define the Bush administration's torture policies was a major focus of his Senate confirmation hearings on his nomination to be attorney general.
A prepublication copy of The Torture Papers was sent to the offices of Sen. Patrick J. Leahy, ranking member of the Senate Judiciary Committee. David Carl, a spokesman for the senator, called the book "a timely and well-organized anthology of ... the lengthy paper trail" that became the focus of the confirmation hearing.
From Copy Shop to Bookstores
The research that mushroomed into The Torture Papers began at NYU's Center on Law and Security, which was created after September 11, 2001, to study issues relating to terrorism and national security.
Ms. Greenberg says she was asked to check out a rumor, which proved to be untrue, that Secretary of Defense Donald H. Rumsfeld had given soldiers the green light to beat and torture prisoners. The center's staff began calling reporters, human-rights groups, and federal offices, trying to gather hundreds of pages of memos and documents scattered around the country.
"I figured we'd go to Kinko's, Xerox it, and call a few people, but it took on a life of its own," says Ms. Greenberg, who now gets about a dozen calls a week from human-rights groups, law firms, and newspapers seeking information about the torture documents.
The first part of the collection includes more than two dozen memos written over a two-and-a-half-year period, beginning in September 2001. The documents, circulated mostly between the Justice and Defense Departments and the White House, establish legal arguments for using harsh interrogation techniques on suspected terrorists.
Human-rights groups have accused military and intelligence officers of subjecting prisoners to beatings, severe sleep deprivation, loud and annoying noises, and exposure to extreme cold. Among the most controversial techniques is something called waterboarding, in which interrogators repeatedly dunk detainees under water long enough that they feel they are about to drown.
The memoranda were key to the promulgation of those tactics in Guantánamo Bay and elsewhere, say the critics.
The volume also includes the February 2004 report of the International Committee of the Red Cross, which describes abuses and mistreatment of Iraqi prisoners, as well as the "Taguba Report," which details the degrading and sexually humiliating treatment of Iraqi prisoners at the Abu Ghraib prison near Baghdad. Prepared by U.S. Maj. Gen. Antonio M. Taguba, the report cited "egregious acts and grave breaches of international law."
While Ms. Greenberg was hunting for memos, Mr. Dratel was trying to track down some of the same documents to pull together a chronology of the Bush administration's policies on torture in his efforts to defend a terror suspect, David M. Hicks. The Australian citizen and Guantánamo detainee was captured in Afghanistan in December 2001 and charged with involvement with Al Qaeda. He is scheduled to go on trial this spring on charges of conspiracy, attempted murder, and aiding the enemy.
Mr. Dratel and Ms. Greenberg decided to join forces. Now the volume contains a lawsuit that Mr. Dratel filed on behalf of Mr. Hicks against the U.S. government, charging that Mr. Hicks was beaten while handcuffed and blindfolded, and that he witnessed other abuses while detained at Guantánamo.
Asked whether she was concerned about becoming allied with someone with a clear stake in the outcome of the debate over the memoranda, Ms. Greenberg said that shouldn't matter.
"This is a compilation of documents that we are making available to the public. In the 1,500 pages of documents which almost entirely support torture, a few pages of introductory matter ... expressing doubts about the policy seems perfectly responsible to me." Ms. Greenberg is working on a companion volume of essays that will include a variety of viewpoints.
Academics Under Fire
In his introduction to The Torture Papers, Mr. Dratel takes aim at the lawyers who helped formulate the administration's policies on torture.
"The participants should neither be confirmed for judicial appointments nor offered teaching positions," he writes. "Their incapacity as jurists is self-evident; as for the latter, it is not an issue of academic freedom. Why would we want people who instituted torture as national policy to train and educate college and university students any more than we would want the Nazi propagandist Joseph Goebbels to teach political science?"
The charge that government lawyers bent the law to justify illegal acts is "flat wrong," says John C. Yoo, a prominent international-law professor at the University of California at Berkeley and one of Mr. Dratel's targets. He wrote one of the key memos while he was on leave from Berkeley and working for the Justice Department.
Mr. Dratel's charge "displays an unfortunate willingness to engage in accusatory hyperbole and exaggeration rather than attempting to understand the complexities of waging war against an unprecedented enemy, a nonstate actor like Al Qaeda," Mr. Yoo wrote in an e-mail message to The Chronicle this month.
Mr. Yoo's 40-page, January 9, 2002, memo advised the Defense Department that neither the Geneva Convention nor the War Crimes Act applied to the treatment of Al Qaeda or Taliban fighters captured in Afghanistan.
Afghanistan, he said, was a "failed state" and so not a party to the Geneva Convention, which protects prisoners of war from "physical or mental torture or any other form of coercion" to secure information, as well as from humiliating or degrading treatment. Members of the Taliban militia were not POW's but simply illegal combatants, he said.
After learning about the memos last year, about a quarter of Berkeley's graduating law students protested Mr. Yoo's involvement by wearing red armbands during graduation ceremonies in May. Some also called for his resignation (The Chronicle, September 24, 2004).
Mr. Yoo is not the only academic lawyer who has taken heat for his alleged involvement with the torture memos. Some Harvard Law School professors have protested the recent hiring of Jack L. Goldsmith, an international-law expert who previously worked in the U.S. Defense and Justice Departments and who is known for his conservative interpretations of international law (The Chronicle, September 10, 2004).
Harvard's law dean, Elena Kagan, says that Mr. Goldsmith assured her that he had not written any of the torture memos. That seemed to satisfy faculty members, who overwhelmingly approved his appointment.
Some, however, have been troubled by a document, which is included in the torture book, in which he argued that it was legally permissible to transfer certain detainees out of Iraq to other countries for questioning.
"I don't know how you can argue that it's not a torture memo when the purpose is to justify shipping prisoners to countries that would torture them more intensely," says one Harvard law professor, who asked not to be identified.
The document does, however, contain a footnote that recommends that the detainees should be treated humanely, according to international conventions. Mr. Goldsmith declined to comment on the controversy.
A Mixed Verdict
Mr. Dratel says that excluding detainees like his client from war protections dehumanizes them. Yet he understands why in the aftermath of September 11 many Americans were less concerned with the rights of potential terrorists than they were with meting out justice.
"I live two blocks from the World Trade Center," he says. "I was in a cloud of dust and debris for two months. I completely understand the visceral reaction of wanting to find these guys and do whatever it takes to extract information.
"But the bottom line is, we made a decision as a nation to engage in international covenants that establish a threshold of acceptable behavior. We can't just adhere to them when everything is neat and comfortable."
A few of the key players reached the same conclusion, after a great deal of questioning and soul-searching, Ms. Greenberg says.
"It's not all a bad story," she says of The Torture Papers. "There are people who are trying. They're reasoning and questioning" most prominently, Secretary of State Powell.
In January 2002, Mr. Powell asked the administration to reconsider its decision that Al Qaeda and Taliban members were not entitled to prisoner-of-war status, saying that doing so would "reverse over a century of U.S. policy and practice ... and undermine the protections of the laws of war for our troops, both in this specific conflict and in general."
His memo, which Ms. Greenberg refers to as "a virtual cry in the dark," warned that other countries might retaliate against the United States by mistreating American soldiers abroad. If the United States were to sanction torture, it could result in an international backlash and erode support for America abroad, he said.
But those arguments were all but drowned out by the chorus of calls for a more flexible interpretation of international laws. In a January 25, 2002, memo to President Bush, Mr. Gonzales, the White House counsel, called the campaign against terrorism "a new kind of war" that made certain provisions of the Geneva Convention "obsolete."
Mr. Gonzales added: "The nature of this new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against America civilians."
He acknowledged that scrapping those protections could cause "widespread condemnation" from other countries and increase the likelihood that U.S. servicemen would be mistreated. In the end, however, Mr. Gonzales sided with those who said the protections did not apply.
In an introduction to The Torture Papers, Anthony Lewis, a former New York Times columnist, calls the documents "an extraordinary paper trail to mortal and political disaster: to an episode that will soil the image of the United States in the eyes of the world for years to come. They also provide a painful insight into how the skills of the lawyer -- skills that have done so much to protect Americans in this most legalized of countries -- can be misused in the cause of evil."
"These pages speak volumes," Ms. Greenberg says, about the dangers of overreacting in times of fear and crisis. "We all know that torture has gone on in a clandestine way. We don't want it to become the practice of the land."
NOTABLE MOMENTS IN THE TORTURE DEBATE
Memorandum to the general counsel of the U.S. Department of Defense from John C. Yoo, then deputy assistant attorney general, January 9, 2002. (Mr. Yoo is now a professor of law at the University of California at Berkeley.):
Regarding the treatment of Al Qaeda detainees:
"Al Qaeda is merely a violent political movement or organization and not a nation-state. As a result, it is ineligible to be a signatory to any treaty."
"Al Qaeda members have clearly demonstrated that they will not follow these basic requirements of lawful warfare. They have attacked purely civilian targets of no military value, they refused to wear uniform or insignia or carry arms openly, but instead hijacked civilian airliners, took hostages, and killed them, they have deliberately targeted and killed thousands of civilians, and they themselves do not obey the laws of war concerning the protection of the lives of civilians or the means of legitimate combat."
Regarding the treatment of captured members of the Taliban militia:
"We believe that the Geneva Conventions do not apply for several reasons. First, the Taliban was not a government, and Afghanistan was not-- even prior to the beginning of the present conflict-- a functioning state during the period in which they engaged in hostilities against the United States and its allies. Afghanistan's status as a failed state is ground alone to find that members of the Taliban militia are not entitled to enemy POW status under the Geneva Conventions. Further, it is clear that the president has the constitutional authority to suspend our treaties with Afghanistan pending the restoration of a legitimate government capable of performing Afghanistan's treaty obligations."
***
Memorandum to the counsel to the president and the assistant to the president for national security affairs from Colin L. Powell, secretary of state, January 26, 2002:
Regarding the option of stating that the Geneva Conventions did not apply to the Afghanistan conflict:
"Pros: This is an across-the-board approach that on its face provides maximum flexibility, removing any question of case-by-case determination for individuals.
"Cons:
- It will reverse over a century of U.S. policy and practice in supporting the Geneva Conventions and undermine the protections of the law of war for our troops, both in this specific conflict and in general.
- It has a high cost in terms of negative international reaction, with immediate adverse consequences for our conduct of foreign policy.
- It will undermine public support among critical allies, making military cooperation more difficult to sustain.
- Europeans and others will likely have legal problems with extradition or other forms of cooperation in law enforcement, including bringing terrorists to justice.
- It may provoke some individual prosecutors to investigate and prosecute our officials and troops.
- It will make us more vulnerable to domestic and international legal challenge and deprives us of important legal options...
Revision in the U.S. Department of Justice's definition of torture, written by Daniel Levin, acting assistant attorney general, December 30, 2004:
"Torture is abhorrent both to American law and values and to international laws."
SOURCE: The Torture Papers: The Road to Abu Ghraib
http://chronicle.com
Section: Research & Publishing
Volume 51, Issue 20, Page A12