Taft was hardly the first to push back against the Office of Legal Counsel rulings in the wake of 9/11. One colleague described Yoo's October 23, 2001, memo authorizing the domestic terrorist surveillance program as “weak” and “sloppy” and blind to relevant questions of law.
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To Thomas Romig, Yoo's proposals on the subject of future military commissions would return the country to the days of “the Indian Wars. I looked at him and said, âYou know, that was 100-and-something
years ago. You're out of your mind; we're talking about the law.'” Romig felt that high-level Bush administration officials regarded the concept of due process as so much “mumbo jumbo.” For over a year, Romig struggled to haul national security policy in line with the law, before finally being told “the time for law has passed,” that it was time “to take the gloves off.”
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In defending his Geneva and subsequent memos, Yoo argues that it is wrong to confuse the legal rulings that issued from the Office of Legal Counsel with policy. The administration had asked the Justice Department for a reading of the law, and he and his colleagues had responded accordingly. The administration did not have to adopt those rulings as policy, Yoo insists. During the Korean and Vietnam wars, for example, the United States extended Geneva protections to combatants fighting for sides that had not signed the Geneva protocols. The Bush administration could have chosen to do so again. It had not. Yoo says that he made this point to Taft himself a few days after receiving Taft's dissent at a meeting in the White House Situation Room. “Oh,” Yoo remembers Taft responding with relief, “good.”
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Down at Guantánamo, Brandon Neely and his fellow prison guards viewed the ambiguity about whether Guantánamo applied as a license to “get some”: to “inflict pain” and “get revenge.”
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Neely remembers the detainees' arrival that Friday afternoon in great detail. “Everyone,” he reports, “including myself, was very nervous. We did not know when or how many detainees would be arriving that day to Camp X-Ray.” After hours of anticipation, Neely learned that “the detainees were at the air strip” across the bay on Leeward Point, and that they were “being loaded up to bring to the camp.” Neely started getting really nervous, almost scared. “Here it comes,” he thought. “I am fixing to see what a terrorist looks like face-to-face.” Neely's escort partner was as nervous as he. Indeed, “everybody in the camp that day was nervous and scared; you could literally hear a pin drop moments before that bus full of detainees arrived.”
Led by “Marine humvees with .50 caliber guns mounted on them,” the bus carrying the detainees pulled up to the gate. Upon contact, the MPs exorcised their anxiety on the detainees. “You could hear the Marines
screaming at them âShut the fuck up! You're property of the United States of America now,'” Neely remembers. As an escort, Neely stood near the doors of the bus as one detainee after another was pushed down the stairs and into the grip of awaiting MPs. “The first person who got off the bus, I will never forget. It was a man with one leg. He was later called Stumpy by everyone.” A short but heavy man, Stumpy hopped forward on one leg as MPs hollered at him to pick up the pace. The second thing off the bus was the detainee's prosthetic leg, which was casually tossed onto the ground. The detainees' attire is now the stuff of legend. “The prisoners arrived in orange suits. Some had orange ski caps. They had goggles on their eyes, earmuffs on their ears, surgical masks on their faces, and black gloves on their arms. They were handcuffed and leg-shackled. They had chains around their waists and a padlock on the back. The handcuffs were attached to the waist chain.”
The manner of the detainees' transfer to Guantánamo Bay had been a cause of some concern among journalists and human rights officials. As early as January 3, Secretary Rumsfeld fielded questions on “the delicate, difficult, problem of transporting” the detainees from Afghanistan to Guantánamo Bay. “It's a long way,” Rumsfeld conceded. “It's one of the disadvantages.” The task would have to be carried out “very, very carefully,” as “every time people have messed with these folks, they've gotten in trouble.” These were, after all, “very well trained” and “hardened” men, “willing to give up their lives in many instances.” US military officials would do their “best,” using “the necessary amount of constraint so that those individuals do not kill Americans in transport or in Guantánamo Bay.” Acknowledging the immensity of the task at hand, one reporter asked if the Defense Department had considered using U.S. marshals, who had “tremendous experience” in escorting dangerous prisoners. “I have not addressed that,” Rumsfeld confessed; he assumed that “military personnel” would handle the job.
A series of recent books argue that the torture and abuse that made Guantánamo and Abu Ghraib notorious was introduced at Guantánamo in autumn 2002 and then migrated to Iraq as part of a top-down, systematic attempt on the part of high-level Bush administration officials to adjust interrogation techniques to meet the challenges of an unprecedented enemy. If true, this cuts against the grain of the last century of
modern torture history, which suggests that torture spreads horizontally rather than vertically as interrogators “pass on techniques ⦠through low-level transmission between ordinary soldiers and policemen or by means of simple imitation on the job.”
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Such was the case during the Vietnam War, for instance, where the torture carried out by U.S. military interrogators proceeded without the authority (and perhaps even the knowledge) of top U.S. officials.
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In fact, evidence from Brandon Neely and many others suggests that torture spread both ways at Guantánamo Bay. The abuse and torture of detainees in U.S. custody began long before General Geoffrey Miller showed up at Guantánamo Bay. It began with the first detentions of suspected al Qaeda and Taliban in places such as Kandahar and Bagram, Afghanistan, and migrated along with the detainees to the naval base at Guantánamo Bay.
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Like Neely, soldiers in Afghanistan reported receiving “no specific training on the treatment of detainees”; rather, detainees “relied on their common knowledge in this area,” employing “techniques they literally remembered from the movies.” Expertise was a luxury circumstances didn't allow; there were simply “too many interrogations and not enough interrogators.”
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Beginning in late January 2002, Secretary of State Rumsfeld became agitated at the lack of actionable intelligence emanating from Guantánamo Bay. With each passing day, the prospect of attaining useful information became attenuated. By mid-February it was obvious that Joint Task Force 160, which had been charged with overseeing the detention facility, was not up to the more critical task of obtaining information. On February 16 Rumsfeld commissioned JTF 170 to run the intelligence operation.
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To lead JTF 170 the Pentagon selected Major General Michael Dunlavey, a man closely allied with Rumsfeld and other high-ranking Bush administration officials and whom one colleague described as “a tyrant and a strong Republican.”
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Dunlavey's arrival in early March, together with Michael Lehnert's departure at the end of the month, signaled a change in emphasis at Guantánamo from detention to interrogation. From the first interrogations at Camp X-Ray, Lehnert had been concerned about the potential
for detainee abuse. This concern mounted over the course of his overlapping month with Dunlavey, when Dunlavey approached Lehnert with a list of proposed techniques designed to coerce detainees to talk.
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Brandon Neely remembers becoming skeptical that many detainees were guilty of anything besides being in the wrong place at the wrong time.
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By May even Dunlavey came to realize that many detainees weren't talking because they had nothing to say. When he took this message to Pentagon officials, he was informed that there would be no returning detainees to their home country; the interrogations should proceed.
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In June 2002 an alert FBI agent matched a fingerprint belonging to the supposed “twentieth hijacker,” turned away by immigration officials at the Orlando airport in August 2001, with that of a Saudi citizen named Mohammed al-Qahtani, picked up in Afghanistan in December 2001 and held at Guantánamo Bay. To interrogate al-Qahtani, the FBI dispatched to Guantánamo a senior agent fluid in Arabic and knowledgeable about al Qaeda. Over the course of the next several months, using conventional rapport-building techniques, the agent got al-Qahtani to talk. Al-Qahtani confessed to attending an al Qaeda training session with several of the other hijackers, and to intending to join the 9/11 attacks. But that is about all he had to say, leaving some U.S. officials convinced that he must be hiding something. A conversation ensued: “There were lots of suggestions in August about what to do,” Dunlavey remembered. “There were many âbrilliant ideas,' but the difficulty was that military interrogators were trained to interrogate militarily ⦠. The opinion was that with more effective techniques we could make this work.”
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Thus accelerated the hunt initially begun in the autumn of 2001 for what would become known as “enhanced interrogation” techniques, and the legal justification for implementing them. Bush administration officials continue to insist that these techniques bubbled up from the ranks. But evidence suggests they emanated directly downward from the White House and the Pentagon.
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It was around this time that John Yoo sprang to action once more, authoring perhaps the most notorious of all his legal memorandums. Dated August 1, 2002, the so-called Torture Memo redefined torture to suit the policy of the Bush administration and to ensure that members of the administration
who authorized or carried out torture would not be prosecutable under the War Crimes Act. “We conclude that torture as defined in and proscribed by Sections 2340-2340A, covers only extreme acts,” Yoo wrote. “Severe pain is generally of the kind difficult for the victim to endure. Where the pain is physical, it must be of an intensity akin to that which accompanies serious physical injury such as death or organ failure.” By this logic, detainees hung from meat hooks at Kandahar did not suffer torture. “Severe mental pain requires suffering not just at the moment of infliction but it also requires lasting psychological harm, such as seen in mental disorders like post-traumatic stress disorder. Additionally, such severe mental pain can arise only from the predicate acts listed in Section 2340. Because the acts inflicting torture are extreme, there is [a] significant range of acts that though they might constitute cruel, inhuman, or degrading treatment or punishment fail to rise to the level of torture.” Yoo finished with a familiar refrain: if the president says an interrogation technique is necessary, it is not torture. He is the commander in chief.
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Exposed in the late spring of 2004, the Torture Memo was roundly repudiated. One legal scholar described it as “simply made of whole cloth. Well, not even. There's no cloth there at all. It is completely unsupported by, and contrary to, the plain words and structure of the [torture] statute.” Another compared it to “discredited legal theories used by Latin American countries” to justify repression. Yoo's former teacher the Yale professor Harold Koh called the memo “perhaps the most clearly erroneous legal opinion I have ever read.” Another critic simply dismissed it as a “disgrace.” Yet another found that “it falls far below the minimum standards of professional competence.” Conservatives chimed in as well as liberals. The conservative legal scholar Ruth Wedgwood observed that the memo called to mind “the 14th century, when an outlaw was treated like a wild beast.”
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With every additional memo, army judge advocate general Thomas Romig remarked, Yoo seemed to be moving the nation back in time.
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Armed with the August 1 memo defining torture as something Americans would never do, David Addington, Alberto Gonzales, Jim Haynes, and the CIA lawyer John Rizzo flew down to Guantánamo in late
September 2002 to speak to personnel in charge of interrogating al-Qahtani. There they consulted with Dunlavey and JTF counsel Diane Beaver about how to induce al-Qahtani to talk.
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Within a few months, and after an organizational review that unified the Guantánamo detention and interrogation commands under the command of General Geoffrey Miller, interrogators at the prison had a list of eighteen “enhanced interrogation” techniques approved by the Pentagon for use on al-Qahtani.
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The interrogation log, publicly available, reveals that over the course of the next fifty-five days, al-Qahtani was systematically broken down. Among other things, he endured twenty-hour interrogations, forced shaving, forced nudity in the presence of a female, and various forms of sexual taunting and humiliation by a female, including straddling and rubbing. He was made to perform dog tricks, put in stress positions for prolonged periods of time, accused of homosexuality, made to wear women's underwear on his head, forced to pray before an “idol” shrine, told that his mother and sister were whores, shown pornographic pictures, made to dance with a male interrogator, told that other detainees would be told that he became aroused when searched by male guards, and threatened by military dogs.
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“We tortured al-Qahtani,” Susan Crawford, convening authority for the Office of Guantánamo Military Commissions, would later acknowledge. “His treatment met the legal definition of torture. And that's why I did not refer” al-Qahtani for prosecution.
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