Yesterday, on CBS Face the Nation, the New Yorker's Seymour Hirsch turned to Sen. Carl Levin (D-Michigan) and Sen. Lindsay Graham (R-S.C.) and said:
"On--on the classified aspects of moving them, yes, th--this would have been something briefed. But obviously I wasn't, you know, a fly on the wall. I--I am told that Rumsfeld did get authority for this from Condoleezza Rice, and al- setting up the original program and also from the president. That doesn't mean necessarily they were kept up and informed.
"Let me just say this, though, to the senators, which is I--I--believe me, I know our military is full of really dedicated people, and they can be very rough when they have to be. But the kind of stuff that's gone on in this prison and in--and in -and with this program has really offended some very senior people. And you guys have a great staff, both the majority and minority. You've got a lot of professional people there. If you convene a serious is--hearing and I assure you some senior officers will come and--if you give them enough protection, and tell you things that will really knock your socks off. So go for it.
The Emperor has no uniform...
John Barry, Michael Hirsh and Michael Isikoff,
Newsweek: The White House put up three soldiers for
court-martial, saying the pictures were all the work
of a few bad-apple MPs who were poorly supervised. But
evidence was mounting that the furor was only going to
grow and probably sink some prominent careers in the
process...Cut out of the process, as usual, was Colin Powell's State Department. So were military lawyers for the uniformed services. When State Department lawyers first saw the Yoo memo, "we were horrified," said one. As State saw it, the Justice position would
place the United States outside the orbit of
international treaties it had championed for years.
Two days after the Yoo memo circulated, the State
Department's chief legal adviser, William Howard Taft
IV, fired a memo to Yoo calling his analysis
"seriously flawed." State's most immediate concern was
the unilateral conclusion that all captured Taliban
were not covered by the Geneva Conventions. "In
previous conflicts, the United States has dealt with
tens of thousands of detainees without repudiating its
obligations under the Conventions," Taft wrote. "I
have no doubt we can do so here, where a relative
handful of persons is involved."
The White House was undeterred. By Jan. 25, 2002,
according to a memo obtained by NEWSWEEK, it was clear
that Bush had already decided that the Geneva
Conventions did not apply at all, either to the
Taliban or Al Qaeda. In the memo, which was written to
Bush by Gonzales, the White House legal counsel told
the president that Powell had "requested that you
reconsider that decision." Gonzales then laid out
startlingly broad arguments that anticipated any
objections to the conduct of U.S. soldiers or CIA
interrogators in the future. "As you have said, the
war against terrorism is a new kind of war," Gonzales
wrote to Bush. "The nature of the 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 American civilians." Gonzales
concluded in stark terms: "In my judgment, this new
paradigm renders obsolete Geneva's strict limitations
on questioning of enemy prisoners and renders quaint
some of its provisions."
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The Roots of Torture
The road to Abu Ghraib began after 9/11, when
Washington wrote new rules to fight a new kind of war.
A NEWSWEEK investigation
Tough tactics: Defense Secretary Donald Rumsfeld
pushed for a Gitmo style approach to prisoner
interrogations in Iraq
By John Barry, Michael Hirsh and Michael Isikoff
Newsweek InternationalMay 24 - It's not easy to get a
member of Congress to stop talking. Much less a room
full of them. But as a small group of legislators
watched the images flash by in a small, darkened
hearing room in the Rayburn Building last week, a
sickened silence descended. There were 1,800 slides
and several videos, and the show went on for three
hours. The nightmarish images showed American soldiers
at Abu Ghraib Prison forcing Iraqis to masturbate.
American soldiers sexually assaulting Iraqis with
chemical light sticks. American soldiers laughing over
dead Iraqis whose bodies had been abused and
mutilated. There was simply nothing to say. "It was a
very subdued walk back to the House floor," said Rep.
Jane Harman, the ranking Democrat on the House
Intelligence Committee. "People were ashen."
The White House put up three soldiers for
court-martial, saying the pictures were all the work
of a few bad-apple MPs who were poorly supervised. But
evidence was mounting that the furor was only going to
grow and probably sink some prominent careers in the
process. Senate Armed Services Committee chairman John
Warner declared the pictures were the worst "military
misconduct" he'd seen in 60 years, and he planned more
hearings. Republicans on Capitol Hill were notably
reluctant to back Defense Secretary Donald Rumsfeld.
And NEWSWEEK has learned that U.S. soldiers and CIA
operatives could be accused of war crimes. Among the
possible charges: homicide involving deaths during
interrogations. "The photos clearly demonstrate to me
the level of prisoner abuse and mistreatment went far
beyond what I expected, and certainly involved more
than six or seven MPs," said GOP Sen. Lindsey Graham,
a former military prosecutor. He added: "It seems to
have been planned."
Indeed, the single most iconic image to come out of
the abuse scandal—that of a hooded man standing naked
on a box, arms outspread, with wires dangling from his
fingers, toes and penis—may do a lot to undercut the
administration's case that this was the work of a few
criminal MPs. That's because the practice shown in
that photo is an arcane torture method known only to
veterans of the interrogation trade. "Was that
something that [an MP] dreamed up by herself? Think
again," says Darius Rejali, an expert on the use of
torture by democracies. "That's a standard torture.
It's called 'the Vietnam.' But it's not common
knowledge. Ordinary American soldiers did this, but
someone taught them."
Who might have taught them? Almost certainly it was
their superiors up the line. Some of the images from
Abu Ghraib, like those of naked prisoners terrified by
attack dogs or humiliated before grinning female
guards, actually portray "stress and duress"
techniques officially approved at the highest levels
of the government for use against terrorist suspects.
It is unlikely that President George W. Bush or senior
officials ever knew of these specific techniques, and
late last —week Defense spokesman Larry DiRita said
that "no responsible official of the Department of
Defense approved any program that could conceivably
have been intended to result in such abuses." But a
NEWSWEEK investigation shows that, as a means of
pre-empting a repeat of 9/11, Bush, along with Defense
Secretary Rumsfeld and Attorney General John Ashcroft,
signed off on a secret system of detention and
interrogation that opened the door to such methods. It
was an approach that they adopted to sidestep the
historical safeguards of the Geneva Conventions, which
protect the rights of detainees and prisoners of war.
In doing so, they overrode the objections of Secretary
of State Colin Powell and America's top military
lawyers—and they left underlings to sweat the details
of what actually happened to prisoners in these
lawless places. While no one deliberately authorized
outright torture, these techniques entailed a
systematic softening up of prisoners through
isolation, privations, insults, threats and
humiliation—methods that the Red Cross concluded were
"tantamount to torture."
The Bush administration created a bold legal framework
to justify this system of interrogation, according to
internal government memos obtained by NEWSWEEK. What
started as a carefully thought-out, if aggressive,
policy of interrogation in a covert war—designed
mainly for use by a handful of CIA
professionals—evolved into ever-more ungoverned
tactics that ended up in the hands of untrained MPs in
a big, hot war. Originally, Geneva Conventions
protections were stripped only from Qaeda and Taliban
prisoners. But later Rumsfeld himself, impressed by
the success of techniques used against Qaeda suspects
at Guantanamo Bay, seemingly set in motion a process
that led to their use in Iraq, even though that war
was supposed to have been governed by the Geneva
Conventions. Ultimately, reservist MPs, like those at
Abu Ghraib, were drawn into a system in which fear and
humiliation were used to break prisoners' resistance
to interrogation.
"There was a before-9/11 and an after-9/11," as Cofer
Black, the onetime director of the CIA's
counterterrorist unit, put it in testimony to Congress
in early 2002. "After 9/11 the gloves came off." Many
Americans thrilled to the martial rhetoric at the
time, and agreed that Al Qaeda could not be fought
according to traditional rules. But it is only now
that we are learning what, precisely, it meant to take
the gloves off.
The story begins in the months after September 11,
when a small band of conservative lawyers within the
Bush administration staked out a forward-leaning legal
position. The attacks by Al Qaeda on the World Trade
Center and the Pentagon, these lawyers said, had
plunged the country into a new kind of war. It was a
conflict against a vast, outlaw, international enemy
in which the rules of war, international treaties and
even the Geneva Conventions did not apply. These
positions were laid out in secret legal opinions
drafted by lawyers from the Justice Department's
Office of Legal Counsel, and then endorsed by the
Department of Defense and ultimately by White House
counsel Alberto Gonzales, according to copies of the
opinions and other internal legal memos obtained by
NEWSWEEK.
The Bush administration's emerging approach was that
America's enemies in this war were "unlawful"
combatants without rights. One Justice Department
memo, written for the CIA late in the fall of 2001,
put an extremely narrow interpretation on the
international anti-torture convention, allowing the
agency to use a whole range of techniques—including
sleep deprivation, the use of phobias and the
deployment of "stress factors"—in interrogating Qaeda
suspects. The only clear prohibition was "causing
severe physical or mental pain"—a subjective judgment
that allowed for "a whole range of things in between,"
said one former administration official familiar with
the opinion. On Dec. 28, 2001, the Justice Department
Office of Legal Counsel weighed in with another
opinion, arguing that U.S. courts had no jurisdiction
to review the treatment of foreign prisoners at
Guantanamo Bay. The appeal of Gitmo from the start was
that, in the view of administration lawyers, the base
existed in a legal twilight zone—or "the legal
equivalent of outer space," as one former
administration lawyer described it. And on Jan. 9,
2002, John Yoo of Justice's Office of Legal Counsel
coauthored a sweeping 42-page memo concluding that
neither the Geneva Conventions nor any of the laws of
war applied to the conflict in Afghanistan.
Cut out of the process, as usual, was Colin Powell's
State Department. So were military lawyers for the
uniformed services. When State Department lawyers
first saw the Yoo memo, "we were horrified," said one.
As State saw it, the Justice position would place the
United States outside the orbit of international
treaties it had championed for years. Two days after
the Yoo memo circulated, the State Department's chief
legal adviser, William Howard Taft IV, fired a memo to
Yoo calling his analysis "seriously flawed." State's
most immediate concern was the unilateral conclusion
that all captured Taliban were not covered by the
Geneva Conventions. "In previous conflicts, the United
States has dealt with tens of thousands of detainees
without repudiating its obligations under the
Conventions," Taft wrote. "I have no doubt we can do
so here, where a relative handful of persons is
involved."
The White House was undeterred. By Jan. 25, 2002,
according to a memo obtained by NEWSWEEK, it was clear
that Bush had already decided that the Geneva
Conventions did not apply at all, either to the
Taliban or Al Qaeda. In the memo, which was written to
Bush by Gonzales, the White House legal counsel told
the president that Powell had "requested that you
reconsider that decision." Gonzales then laid out
startlingly broad arguments that anticipated any
objections to the conduct of U.S. soldiers or CIA
interrogators in the future. "As you have said, the
war against terrorism is a new kind of war," Gonzales
wrote to Bush. "The nature of the 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 American civilians." Gonzales
concluded in stark terms: "In my judgment, this new
paradigm renders obsolete Geneva's strict limitations
on questioning of enemy prisoners and renders quaint
some of its provisions."
Gonzales also argued that dropping Geneva would allow
the president to "preserve his flexibility" in the war
on terror. His reasoning? That U.S. officials might
otherwise be subject to war-crimes prosecutions under
the Geneva Conventions. Gonzales said he feared
"prosecutors and independent counsels who may in the
future decide to pursue unwarranted charges" based on
a 1996 U.S. law that bars "war crimes," which were
defined to include "any grave breach" of the Geneva
Conventions. As to arguments that U.S. soldiers might
suffer abuses themselves if Washington did not observe
the conventions, Gonzales argued wishfully to Bush
that "your policy of providing humane treatment to
enemy detainees gives us the credibility to insist on
like treatment for our soldiers."
When Powell read the Gonzales memo, he "hit the roof,"
says a State source. Desperately seeking to change
Bush's mind, Powell fired off his own blistering
response the next day, Jan. 26, and sought an
immediate meeting with the president. The proposed
anti-Geneva Convention declaration, he warned, "will
reverse over a century of U.S. policy and practice"
and have "a high cost in terms of negative
international reaction." Powell won a partial victory:
On Feb. 7, 2002, the White House announced that the
United States would indeed apply the Geneva
Conventions to the Afghan war—but that Taliban and
Qaeda detainees would still not be afforded
prisoner-of-war status. The White House's halfway
retreat was, in the eyes of State Department lawyers,
a "hollow" victory for Powell that did not
fundamentally change the administration's position. It
also set the stage for the new interrogation
procedures ungoverned by international law.
What Bush seemed to have in mind was applying his
broad doctrine of pre-emption to interrogations: to
get information that could help stop terrorist acts
before they could be carried out. This was justified
by what is known in counterterror circles as the
"ticking time bomb" theory—the idea that when faced
with an imminent threat by a terrorist, almost any
method is justified, even torture.
With the legal groundwork laid, Bush began to act.
First, he signed a secret order granting new powers to
the CIA. According to knowledgeable sources, the
president's directive authorized the CIA to set up a
series of secret detention facilities outside the
United States, and to question those held in them with
unprecedented harshness. Washington then negotiated
novel "status of forces agreements" with foreign
governments for the secret sites. These agreements
gave immunity not merely to U.S. government personnel
but also to private contractors. (Asked about the
directive last week, a senior administration official
said, "We cannot comment on purported intelligence
activities.")
The administration also began "rendering"—or
delivering terror suspects to foreign governments for
interrogation. Why? At a classified briefing for
senators not long after 9/11, CIA Director George
Tenet was asked whether Washington was going to get
governments known for their brutality to turn over
Qaeda suspects to the United States. Congressional
sources told NEWSWEEK that Tenet suggested it might be
better sometimes for such suspects to remain in the
hands of foreign authorities, who might be able to use
more aggressive interrogation methods. By 2004, the
United States was running a covert charter airline
moving CIA prisoners from one secret facility to
another, sources say. The reason? It was judged
impolitic (and too traceable) to use the U.S. Air
Force.
At first—in the autumn of 2001—the Pentagon was less
inclined than the CIA to jump into the business of
handling terror suspects. Rumsfeld himself was
initially opposed to having detainees sent into DOD
custody at Guantanamo, according to a DOD source
intimately involved in the Gitmo issue. "I don't want
to be jailer to the goddammed world," said Rumsfeld.
But he was finally persuaded. Those sent to Gitmo
would be hard-core Qaeda or other terrorists who might
be liable for war-crimes prosecutions, and who would
likely, if freed, "go back and hit us again," as the
source put it.
In mid-January 2002 the first plane-load of prisoners
landed at Gitmo's Camp X-Ray. Still, not everyone was
getting the message that this was a new kind of war.
The first commander of the MPs at Gitmo was a one-star
from the Rhode Island National Guard, Brig. Gen. Rick
Baccus, who, a Defense source recalled, mainly "wanted
to keep the prisoners happy." Baccus began giving
copies of the Qur'an to detainees, and he organized a
special meal schedule for Ramadan. "He was even
handing out printed 'rights cards'," the Defense
source recalled. The upshot was that the prisoners
were soon telling the interrogators, "Go f—- yourself,
I know my rights." Baccus was relieved in October
2002, and Rumsfeld gave military intelligence control
of all aspects of the Gitmo camp, including the MPs.
Pentagon officials now insist that they flatly ruled
out using some of the harsher interrogation techniques
authorized for the CIA. That included one
practice—reported last week by The New York
Times—whereby a suspect is pushed underwater and made
to think he will be drowned. While the CIA could do
pretty much what it liked in its own secret centers,
the Pentagon was bound by the Uniform Code of Military
Justice. Military officers were routinely trained to
observe the Geneva Conventions. According to one
source, both military and civilian officials at the
Pentagon ultimately determined that such CIA
techniques were "not something we believed the
military should be involved in."
But in practical terms those distinctions began to
matter less. The Pentagon's resistance to rougher
techniques eroded month by month. In part this was
because CIA interrogators were increasingly in the
same room as their military-intelligence counterparts.
But there was also a deliberate effort by top Pentagon
officials to loosen the rules binding the military.
Toward the end of 2002, orders came down the political
chain at DOD that the Geneva Conventions were to be
reinterpreted to allow tougher methods of
interrogation. "There was almost a revolt" by the
service judge advocates general, or JAGs, the top
military lawyers who had originally allied with Powell
against the new rules, says a knowledgeable source.
The JAGs, including the lawyers in the office of the
chairman of the Joint Chiefs, Gen. Richard Myers,
fought their civilian bosses for months—but finally
lost. In April 2003, new and tougher interrogation
techniques were approved. Covertly, though, the JAGs
made a final effort. They went to see Scott Horton, a
specialist in international human-rights law and a
major player in the New York City Bar Association's
human-rights work. The JAGs told Horton they could
only talk obliquely about practices that were
classified. But they said the U.S. military's 50-year
history of observing the demands of the Geneva
Conventions was now being overturned. "There is a
calculated effort to create an atmosphere of legal
ambiguity" about how the conventions should be
interpreted and applied, they told Horton. And the
prime movers in this effort, they told him, were DOD
Under Secretary for Policy Douglas Feith and DOD
general counsel William Haynes. There was, they
warned, "a real risk of a disaster" for U.S.
interests.
The approach at Gitmo soon reflected these changes.
Under the leadership of an aggressive, self-assured
major general named Geoffrey Miller, a new set of
interrogation rules became doctrine. Ultimately what
was developed at Gitmo was a "72-point matrix for
stress and duress," which laid out types of coercion
and the escalating levels at which they could be
applied. These included the use of harsh heat or cold;
—withholding food; hooding for days at a time; naked
isolation in cold, dark cells for more than 30 days,
and threatening (but not biting) by dogs. It also
permitted limited use of "stress positions" designed
to subject detainees to rising levels of pain.
While the interrogators at Gitmo were refining their
techniques, by the summer of 2003 the "postwar"
insurgency in Iraq was raging. And Rumsfeld was
getting impatient about the poor quality of the
intelligence coming out of there. He wanted to know:
Where was Saddam? Where were the WMD? Most
immediately: Why weren't U.S. troops catching or
forestalling the gangs planting improvised explosive
devices by the roads? Rumsfeld pointed out that Gitmo
was producing good intel. So he directed Steve
Cambone, his under secretary for intelligence, to send
Gitmo commandant Miller to Iraq to improve what they
were doing out there. Cambone in turn dispatched his
deputy, Lt. Gen. William (Jerry) Boykin—later to gain
notoriety for his harsh comments about Islam—down to
Gitmo to talk with Miller and organize the trip. In
Baghdad in September 2003, Miller delivered a blunt
message to Brig. Gen. Janis Karpinski, who was then in
charge of the 800th Military Police Brigade running
Iraqi detentions. According to Karpinski, Miller told
her that the prison would thenceforth be dedicated to
gathering intel. (Miller says he simply recommended
that detention and intelligence commands be
integrated.) On Nov. 19, Abu Ghraib was formally
handed over to tactical control of
military-intelligence units.
By the time Gitmo's techniques were exported to Abu
Ghraib, the CIA was already fully involved. On a daily
basis at Abu Ghraib, says Paul Wayne Bergrin, a lawyer
for MP defendant Sgt. Javal Davis, the CIA and other
intel officials "would interrogate, interview
prisoners exhaustively, use the approved measures of
food and sleep deprivation, solitary confinement with
no light coming into cell 24 hours a day.
Consequently, they set a poor example for young
soldiers but it went even further than that."
Today there is no telling where the scandal will
bottom out. But it is growing harder for top Pentagon
officials, including Rumsfeld himself, to absolve
themselves of all responsibility. Evidence is growing
that the Pentagon has not been forthright on exactly
when it was first warned of the alleged abuses at Abu
Ghraib. U.S. officials continued to say they didn't
know until mid-January. But Red Cross officials had
alerted the U.S. military command in Baghdad at the
start of November. The Red Cross warned explicitly of
MPs' conducting "acts of humiliation such as
[detainees'] being made to stand naked... with women's
underwear over the head, while being laughed at by
guards, including female guards, and sometimes
photographed in this position." Karpinski recounts
that the military-intel officials there regarded this
criticism as funny. She says: "The MI officers said,
'We warned the [commanding officer] about giving those
detainees the Victoria's Secret catalog, but he
wouldn't listen'." The Coalition commander in Iraq,
Lt. Gen. Ricardo Sanchez, and his Iraq command didn't
begin an investigation until two months later, when it
was clear the pictures were about to leak.
Now more charges are coming. Intelligence officials
have confirmed that the CIA inspector general is
conducting an investigation into the death of at least
one person at Abu Ghraib who had been subject to
questioning by CIA interrogators. The Justice
Department is likely to open full-scale criminal
investigations into this CIA-related death and two
other CIA interrogation-related fatalities.
As his other reasons for war have fallen away,
President Bush has justified his ouster of Saddam
Hussein by saying he's a "torturer and murderer." Now
the American forces arrayed against the terrorists are
being tarred with the same epithet. That's unfair:
what Saddam did at Abu Ghraib during his regime was
more horrible, and on a much vaster scale, than
anything seen in those images on Capitol Hill. But if
America is going to live up to its promise to bring
justice and democracy to Iraq, it needs to get to the
bottom of what happened at Abu Ghraib.
With Mark Hosenball and Roy Gutman in Washington, T.
Trent Gegax and Julie Scelfo in New York and Melinda
Liu, Rod Nordland and Babak Dehghanpisheh in Baghdad
© 2004 Newsweek, Inc.