The Roots of Torture

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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

 

By John Barry, Michael Hirsh and Michael Isikoff

Newsweek International

 

May 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.