Nemesis: The Last Days of the American Republic (8 page)

The president’s indispensable partner in these operations was his then legal counsel (subsequently attorney general) Alberto Gonzales. In order to protect the president from being charged with illegally ordering the torture of captives, Gonzales gathered around him a remarkable coterie of right-wing lawyers from various branches of the government. These included the Korean-American scholar John Yoo, then assistant attorney general; Timothy Flanigan, deputy counsel to the president; Patrick F. Philbin, deputy assistant attorney general; William J. Haynes, general counsel for the Department of Defense; and Jay S. Bybee, assistant attorney general.
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With sophistry and ideological fervor these legal specialists prepared briefs—”torture memos”—for the president and the secretary of defense claiming, among other things, that “[i]n order to respect the
President’s inherent constitutional authority to manage a military campaign, [the statutory prohibition against torture] must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority. Congress lacks authority under Article I [of the Constitution] to set the terms and conditions under which the President may exercise his authority as Commander-in-Chief to control the conduct of operations during a war.”
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In fact, article 1, section 8 of the Constitution expressly states: “The Congress shall have Power to declare War and make Rules concerning Captures on Land and Water.”

As Karen Greenberg and Joshua Dratel, editors of
The Torture Papers
and leading authorities on these machinations, argue, “The ‘torture memos’ ... deliberately disregard, even nullify, the balance-of-powers doctrine that has defined the United States since its inception.”
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Harold Hongju Koh, dean of Yale University’s law school and a former assistant secretary of state, says, “The notion that the president has the constitutional power to permit torture is like saying he has the constitutional power to commit genocide.... It’s just erroneous legal analysis.”
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Gonzales’s lawyers nonetheless argued for a “unitary executive” theory of presidential power, which essentially suggests that, in time of war (as they also insisted the president’s self-proclaimed “war on terror” was), the president as commander in chief has almost uncontestable powers to do more or less as he pleases, whatever Congress or the courts may say.

Perhaps the most shortsighted aspect of this claim to absolute presidential power is that it leads unavoidably to the president’s liability under the concept of “command responsibility”—the doctrine that a military commander is legally liable for all abuses and atrocities committed by his troops whether he knows about them or not. After World War II, the United States put Japanese general Tomoyuki Yamashita, the so-called Tiger of Malaya and subsequently commander of Japanese forces in the Philippines, on trial. A U.S. war crimes tribunal found that he had failed to uphold “command responsibility” for his troops, who had massacred thousands of innocent civilians in Manila in early 1945, even though the defense established that he had no knowledge of the crimes. Because Yamashita was tried by a military court, he appealed his case directly to the U.S. Supreme Court, which upheld his conviction by a vote of 5 to 3, thereby establishing the doctrine of command responsibility in American law. Justice Frank Murphy warned in dissent, “In the sober afterglow will
come the realization of the boundless and dangerous implications of the procedure sanctioned today.... Indeed, the fate of some future President of the United States and his chief of staff and military advisers may well have been sealed by this decision.” In other words, American constitutional law already establishes the grounds on which President Bush could be held accountable for his failure to exercise command responsibility in cases of torture at Guantanamo, Abu Ghraib, and elsewhere.
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As Justice Murphy suggested, the issue of command responsibility applies equally well to the president’s underlings, Secretary Rumsfeld and Generals Myers, Sanchez, and Miller. Rumsfeld’s potential liability is, however, greater than just being the highest official in charge of the Department of Defense who failed to stop torture when he learned about it.
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According to the journalist Seymour Hersh, in late 2001, Rumsfeld personally created a highly secret “special access program” (SAP) that directed American special forces units to kill or capture and, if possible, interrogate high-value targets. Code-named “Copper Green,” the SAP “encouraged physical coercion and sexual humiliation of Iraqi prisoners in an effort to generate more intelligence” and was at the root of the Abu Ghraib prison scandal. Both President Bush and General Myers were fully informed about these operations.
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In addition, Rumsfeld personally reviewed and signed off on many of the techniques of humiliation, abuse, and torture that would be brought into play at the American prison at Guantanamo. In one case, in a November 27, 2002, memo on acceptable interrogation methods, he personally scribbled in the margins: “I stand for 8-10 hours a day. Why is standing [as a technique at Guantanamo] limited to 4 hours?”
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Of course, Rumsfeld was not naked and handcuffed when he stood working at his upright desk in the Pentagon.

In December 2003, before army investigators received the first photos of torture practices at Abu Ghraib, now retired colonel Stuart A. Huntington reported to the generals in Iraq that units of Army Rangers, members of Delta Force, Navy SEALs, and other special forces working with the CIA were torturing their detainees. Major General Barbara Fast, the highest-ranking intelligence official in Iraq, had commissioned Huntington, a veteran of the murderous counterinsurgency Phoenix Program during the Vietnam War, which was the model for Rumsfeld’s SAP, to look into
charges of abuse by Copper Green operatives. Huntington concluded that such measures would imperil rather than aid U.S. efforts to quell the Iraqi insurgency. When Huntington was told by one officer at a high-value-target detention center in Baghdad that prisoners taken by the highly classified units showed signs of having been beaten, he asked whether the officer had alerted his superiors to the problem. The reply was, “Everyone knows about it.”
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When on May 6, 2004, the press questioned Rumsfeld about his responsibility for widespread military torture in Afghanistan and Iraq, he replied, “My impression is that what has been charged thus far is abuse, which I believe technically is different from torture.... Therefore I’m not going to address the torture word.”
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Unfortunately, Rumsfeld’s attempt to trivialize what he had authorized did not cause the problem to disappear. It only got worse and ultimately implicated the high command.

All the torture took place during General Richard Myers’s term as chairman of the Joint Chiefs of Staff. He knew and approved of everything that was done, including a December 2002 list of new interrogation techniques signed off on by Rumsfeld that were to be used on al-Qaeda captives held at Guantanamo Bay. These techniques included sleep and food deprivation, degrading treatment such as having female soldiers in their underwear grab and kick detainees’ genitals and rub their breasts against them, insulting detainees’ religious beliefs by having women smear them with fake menstrual blood, and using agonizing “stress positions” to try to get them to talk.
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After the torture photos were turned over to army criminal investigators, Lieutenant General Ricardo Sanchez, the senior military commander in Iraq, appointed Major General Antonio M. Taguba to investigate the situation at Abu Ghraib. Given army standards of inspecting itself that prevailed in Iraq at that time, General Taguba conducted an unusually thorough and unbiased examination. He documented numerous incidents between October and December 2003 of “sadistic, blatant, and wanton abuses.”
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General Myers, who was both Sanchez’s and Taguba’s superior, reacted to the investigation by, first, trying to prevent details of the torture at Abu Ghraib from being released to the American public and then claiming that he had simply been too busy to get around to reading Taguba’s report. In April 2004, Myers called Dan Rather, the
CBS News
anchorman, and persuaded him not to break the story of the Abu Ghraib tortures for at least two weeks, and in May, four months after Taguba’s report had been completed, Myers told
Fox News
that he had still not read it.
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General Myers was certainly aware of another January 2004 internal army report of abuses committed by the army’s 101st Airborne Division in December in the northern Iraqi city of Mosul. The army kept this document secret until March 25, 2005, when it was released under a Freedom of Information Act suit brought by the American Civil Liberties Union (ACLU). The 101st Airborne’s behavior is important because it demonstrates that the acts of abuse and torture going on at Abu Ghraib were not—in one of General Myers’s favorite phrases—the work of a few “bad apples.” The January 2004 report is also among the few internal documents that directly charge the military with using torture. It says, “There is evidence that suggests 311th MI [the 311th Military Intelligence Battalion] personnel and/or translators engaged in physical torture of the detainees.” The investigating officer, whose name was blacked out of the released documents, wrote that the guards at the Mosul facility came from three infantry units of the 101st Airborne and “were poorly trained and encouraged to abuse prisoners.”
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No one in the division was punished for the abuses over which General Myers held command responsibility, as he did for the cover-up that lasted until the ACLU intervened.

Given his overall command of the armed forces, General Myers was also directly responsible for setting up the torture regime at the Guantanamo prison and then exporting it to Iraq. The first commandant at Guantanamo after 9/11 was Brigadier General Rick Baccus, an officer in the Rhode Island National Guard. He ran the facility as a conventional prisoner-of-war camp, which irritated Pentagon civilian officials, who wanted to implement a whole list of aggressive new interrogation techniques.
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In October 2002, General Myers removed General Baccus, allegedly for “coddling” detainees, and replaced him with Major General Geoffrey Miller, a former artillery officer who had never before held a post connected in any way to intelligence work; and yet Miller was now ordered to increase the flow of “actionable intelligence” from Guantanamo.

In pursuit of this, General Miller introduced direct assaults on prisoners, prolonged shackling in uncomfortable positions, loud music, sexual humiliation, the threat of dogs, and many other forms of torment. FBI agents who were assigned to Guantanamo were alarmed by what they
witnessed there and reported back to Washington via classified e-mails (some of which the ACLU was able to have declassified):” ‘On a couple of occasions, I entered interview rooms to find a detainee chained hand and foot in a fetal position to the floor, with no chair, food, or water,’ the FBI agent wrote on August 2, 2004. ‘Most times they had urinated or defecated on themselves, and had been left there for 18 to 24 hours or more.’ In one case, the agent continued, ‘the detainee was almost unconscious on the floor, with a pile of hair next to him. He had apparently been literally pulling his own hair out throughout the night.’ “
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The result was that the inspectors of the International Committee of the Red Cross accused the U.S. military of using tactics “tantamount to torture” on captives held at Guantanamo Bay.
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At the same time, these methods failed to produce good intelligence. Lieutenant Colonel Anthony Christino, an intelligence officer at the Pentagon with twenty years’ experience, told David Rose, author of
Guantanamo: The War on Human Rights,
“Most of the information derived from interrogations at Guantanamo appears to be very general in nature; so general that it is not very useful.” According to Christino, Guantanamo had not helped to prevent a single terrorist attack.
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In August 2003, the Pentagon sent General Miller to conduct a ten-day review of prison facilities in Iraq. While there, he talked directly to junior commanders and gave them copies of a manual of procedures used at Guantanamo. Although he has repeatedly claimed that he instructed American officers in charge of the Iraqi prisons that the Geneva Conventions did apply there, even if not in Guantanamo, much harsher procedures began to be implemented at Abu Ghraib soon after his departure. According to Brigadier General Janis L. Karpinski, then commandant at Abu Ghraib, “Miller came up there and told me he was going to ‘Gitmoize’ the detention operations.”
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On September 14, 2003, a month after General Miller had returned to Cuba, General Ricardo Sanchez, the commander of all U.S. forces in Iraq, signed a memo putting Miller’s program at Guantanamo into general practice. Sanchez authorized twenty-nine interrogation techniques, including twelve that exceeded limits in the army’s own field manual and four that he admitted probably violated international law, the Geneva Conventions, and accepted standards on the humane treatment of prisoners. Sanchez’s highly classified memo was released to the public only after
a Freedom of Information suit by the ACLU. On the basis of this memo, the ACLU formally asked Attorney General Alberto Gonzales to investigate Sanchez—whom
Hispanic
magazine had just named as 2004’s “Hispanic of the Year”—for perjury. In an appearance before the Senate Armed Services Committee on May 19, 2004, General Sanchez had said under oath, “I never approved any of those measures to be used ... at any time in the last year.”
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Needless to say, nothing came of the ACLU’s request and the army soon exonerated General Sanchez of all responsibility for the horrors of Abu Ghraib. Nonetheless, on May 2, 2006, the ACLU released a new document it had obtained from the inspector general of the Defense Intelligence Agency under a Freedom of Information Act lawsuit. Dated May 19, 2004, the same day as Sanchez’s Senate testimony, and marked “secret,” the document reports an earlier official investigation into General Sanchez’s role in the Abu Ghraib abuses. It says that he had ordered military inter- rogators to “go to the outer limits” to extract information from prisoners, adding that “HQ [headquarters] wanted the interrogators to break the detainees.”
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