The Torture Question: A "Frontline" Special Report

… [What actions does the Bush administration take right after 9/11?]...

Very soon after 9/11, there are decisions made within the Bush administration that if the United States is going to win this war and protect the country against terrorism, and also rid the world of terrorism, rid the world of evil, as the president said at one point, then it must do things that it had not done before. It must break rules that heretofore had been sacrosanct. Vice President Cheney on Sept. 16, so five days after 9/11, spoke in a television interview about doing things on "the dark side": Most of this war will not be seen by the public. Most of this war is going to take place in the darkness, in the shadows, among the intelligence agencies, and that rules that heretofore had been observed would have to be broken, and broken systematically. You see this idea very early on in the Bush administration, and you see [it], uniquely I think, expressed publicly by Vice President Cheney and others.

Another phrase that was publicly uttered a number of times, most obviously, or most prominently, by Cofer Black, who ran counterterrorism policy, was now "the gloves come off." Now, the implication of that, of course, is that before the gloves were on; that is, that the United States was not using its power as it could use its power. And the implication was that because it wasn't using its power as it should have been and could have been, that the U.S. was attacked. Now changes had to be made.

What were those changes? Well, certain rules that had shackled various agencies of the U.S. government, particularly the [Central] Intelligence Agency, but also the Special Forces and to some degree the military, those shackles would have to be taken off those institutions. Things that had grown up over the last 20 or 30 years, including after the Church Committee investigations of the '70s which had unmasked a lot of things that the intelligence agencies had done that Americans were quite shocked by, including assassinations during the '60s, coups that had been staged in Iran and Guatemala, for example, in the '50s. ... And rules had been put subsequently on the intelligence agencies on what they could and couldn't do. ...

Well, now the members of the Bush administration drew the conclusion that those rules had made the United States vulnerable, and those rules had to do not only with assassination and coups, but also they had to do with limits on interrogation. Interrogation was key, the Bush administration believed, to getting immediate intelligence. Getting immediate intelligence was key to protecting the United States from further terrorist attacks. Therefore those rules on interrogation had to be loosened.

Now, the question is, how exactly do you do that? And we have then a story of rules being rewritten within the Department of Justice, of changes being made at the White House level, particularly when it comes to the Geneva Conventions protections, and also, in a more protracted way, changes going on within the military itself. Now, in all of these institutions you had some degree of struggle where you had career employees and so on, career officers who resisted the kind of changes that the administration wanted to effect. And we have, of course, now a paper trail that tells us a little bit about those struggles.

But the ideology behind the rule changes is very clear, which is that the gloves were on; they have to be taken off. We have to do this to protect the country, and we have to do it quickly, very quickly.

... Help me understand the players and their positions. ... Let's start with the Justice Department. ... What's happening there?

Well, the Justice Department ... partly exists to offer opinions to the rest of the government. That is, they get questions; the Justice Department offers an opinion of what the law actually says and what it implies about the behavior that the other institution wants to set in motion. And we know that beginning shortly after the attacks of 9/11, you had a fair degree of traffic between the active agencies of the government, if you want to put it that way, and the Department of Justice, trying to get opinions on what those active agencies could and couldn't do.

An obvious and very well publicized example of this is the debate over the Geneva Conventions and whether Geneva Conventions protections should apply to prisoners in Afghanistan, both Al Qaeda and Taliban prisoners. The Justice Department played a role in offering an opinion that supported the opinion of the counsel to the president, Alberto Gonzales. People in the State Department, lawyers in the State Department, argued against that particular opinion. You had a debate within the government. The decision was finally made not to apply Geneva Conventions protections to those prisoners in Afghanistan for the first time in American history. That's one early example.

There are later examples that I think are more intricate and about which we do not know enough at this point, but they had to do with other agencies of the U.S. government saying we want to do X. To do X we need a legal opinion to support us and tell us that this is legal. Now, the most important of these, perhaps, was a request sometime in the spring of 2002 — we're not precisely sure when — from the CIA asking for an opinion on limits on interrogation. The timeline on this is somewhat murky, but it is clear that the Justice Department, beginning sometime in the spring of 2002, started putting together opinions about what could and could not be allowed for Americans who were interrogating prisoners.

Some of those opinions have come to light partly because they came through the military. Some of them have not come to light, but we know about them. One in particular, for example, was an opinion that was issued to the Central Intelligence Agency permitting water boarding, which is a kind of torture in which a prisoner is stripped down, usually beaten, normally beforehand, strapped to a board facing up toward the ceiling, and then his head submerged in water backwards so that water runs down his nostrils. It's a way to induce drowning, and the trick is to pull the head out before the prisoner actually drowns, but it's quite terrifying. It's a traditional torture used by the French during the Algerian War (1954-62). It was used by the Argentines during the Dirty War of the '70s — very well known.

There does exist, although the document hasn't been made public, from the Justice Department in August 2002 — so essentially 11 months after 9/11 — [a document] that approves of water boarding, that says yes, you can use this. There are other documents that apparently were issued at the instigation of the intelligence agencies — that is, people, in effect, in the field, who are saying we want to do this, we want to do this, but we need some kind of permission or a legal opinion telling us it's legal, that indeed do push back the borders of what you can and cannot do as you interrogate.

Now, this is a remarkable thing. I think no one assumes that the American intelligence agencies have never tortured captives or prisoners in their history. What probably is very new, and new with the war on terror, is that there exists now documentary evidence, including documents from the Department of Justice lawyers themselves, talking about these procedures and in effect approving them.

Now, the largest and perhaps most important of these documents which we know about was also issued in August 2002, the so-called torture memo, written over the signature of [Assistant Attorney General for the Office of Legal Counsel] Mr. [Jay S.] Bybee. That memo essentially pushes back very dramatically the borders of what can and cannot be considered torture. The United States has signed treaties and passed laws making torture illegal. The key questions is, well, what is torture?

And though these international agreements define torture, the document from the Justice Department essentially narrows that definition a great deal more. It essentially says for something to be defined as torture, the pain caused must be equivalent to major organ failure or death. Now, if you think about that for a minute, you'll realize that there's an awful lot of things you can do to somebody before the pain is equivalent to major organ failure or death. So this particular document from the Department of Justice essentially, in effect, made legal many, many activities that heretofore would have been considered illegal. And that particular document is a critical one. …

Now, of course when people who wrote that document and researched documents say that all we were really doing [was] looking at case law, law that exists; there had really never been a definition of torture that existed in any specificity, and all [they] were really doing was offering a legal analysis. [They] were not offering a how-to list. What's wrong with that argument?

... When it comes, for example, to presidential power, if you look at these memos, and in particular the torture memo, you see one of its arguments is that the president in essence during wartime can do what he wants. There is a very strong argument, or at least very vigorous argument, saying that in effect, you cannot limit the president's power to interrogate a prisoner as he wants, because it's in his power; that is, the executive and international treaties cannot so limit the president.

Now, that particular argument, so far as I can tell, is not accepted by the mainstream at all of legal opinion in this country. In the memo, you do not see cited major precedents. The actual key precedents on issues of presidential power, one of which is Youngstown Steel, which had to do with President Truman seizing the steel mills during the Korean War, very famous case, key case on the limitation of presidential power, it's not even in the memo.

So in order to argue that in essence these are nonpolitical arguments, these are simply lawyers telling you what they believe, it seems to me you have to have at least a mildly convincing argument that the legal homework has been done. And if you look at these documents, as far as I can tell, the legal homework hasn't been done. What they are doing is arguing very strongly a particular position in the guise of giving you a neutral legal opinion.

What does the paper trail, as you've seen it in this early going, tell us?

The paper trail tells us, I think, that you had high officials who were very interested in getting dramatic, rapid results. They had, quite understandably, a strong sense of urgency that they had to change how the government worked — they had to change how the intelligence agencies, for example, operated when they interrogated; they had to change how the military operated — that one of their greatest difficulties in fighting the war on terror was to change how the American government did business. So you see this urgency within these particular documents. You see the urgency about changing how people think, changing how institutions work.

You also see a concern to push actors within the government to rethink the way they had done business. We see this is in the debate over the Geneva Conventions, for example, when you have [then-Secretary of State] Colin Powell coming back very strongly saying, "This is a mistake to withhold Geneva Conventions protection; it will put American soldiers at risk." And it will also — and he said this very prophetically — lead to the degradation of good order and discipline within the American military. He wrote this; he said it. And you see the attitude coming back in the other memos from Alberto Gonzales, from the Department of Justice, essentially saying, "Look, this isn't what we're worried about right now; what we're worried about is getting rapid interrogations." They don't precisely say that, but fighting a new kind of war, a "new paradigm," as Gonzales said. ...

So the first thing you notice is a sense of urgency. The second thing you notice is a sense of radicalism, which is the other side of the same thing, which is, "We are going to change things. We're going to do it right now; we're not going to wait." Again, a sense of urgency, but also a sense that government institutions very often run on inertia, that they haven't rethought how they work. The military hasn't rethought how it works. The notion of how the military interrogates goes back 200 years to George Washington and its notion of how to treat prisoners. Well, we can't afford that now. The gloves, as Cofer Black said, have to come off. ...

And finally, you see mixed with this a notion of a legal belief that has been embedded in the Federalist Society and various radical lawyers on the right wing that are now in power. ... It's almost a royalist idea of power; that the president, if he wants to interrogate a prisoner in whatever way he wants, he cannot be stopped, neither by the other institutions of government nor by international treaty nor by domestic statute, because these are under his war powers. So you see an untrammeled notion of executive power that's very radical in American history, but that happens to come forward at this time because of the particular administration you have in power and the event that has happened.

So you have circumstance, and you have action. They come together, and you have the kind of documents that we see from the Department of Justice and the Department of Defense — radical, determined, aggressive. "Radical" is the word.

It's a really interesting notion that you and others write. [The Sept. 14, 2001 authorization from Congress] gives [the president] the authority to chase Al Qaeda, whatever state it goes to, go wherever he needs to go, do whatever he needs to do. From that, the logic of everything else they write, from their point of view, flows. ...

I think that's true. I think it's true that in the first few days, the notions that would lead to the particular activities that happened at Abu Ghraib and Guantanamo and elsewhere and places we don't know about, that kind of matrix was laid down that had to do with presidential power, that had to do with the absolute urgency of getting intelligence, that had to do with the notion of newness — that is a new paradigm. Get rid of the past. All of this stuff is a kind of accretion built up in our human rights law, the legal structure preventing torture or prohibiting torture, etc. This is a kind of accretion around muscles that we now need to use. ...

I can't prove [it], but I think there's considerable evidence now that the legal justification for some of the activities having to do with interrogation in South Asia, for example, in Afghanistan, the justification came after the original activities were tried out. It's my belief.

So they become sort of cover-your-ass memos.

I think so. Well, there's something more than what might be called cover-your-ass memos. They're also developing a kind of legal justification that permeates throughout the government. You see, for example, in the torture memo, August 2002, huge chunks of that memo were incorporated in the working group on interrogation the following spring that Secretary of Defense [Donald] Rumsfeld organized within the Department of Defense ... so that you have the legal theory being developed and then being incorporated into the military's planning documents.

It's in some ways the miracle of the word processor. You see these things, and there they are, the same paragraphs. So they raced around the government, and you can find them in very many places, not just in the Department of Justice.

Is it your guess from looking at the material and thinking hard about it that when Gitmo was being first put together, or interrogation teams are being assembled, ... that the people at that level in the military, maybe even at the agency, certainly at the FBI, are aware that these rules, these laws have been promulgated?

Obviously the military's a very large institution. If you get to the level of military intelligence and the actual interrogators, the people who sit down with prisoners every day and try to get information out of them, they are told what the rules are by their superiors. They're in general not that concerned about a legal regime. What they're concerned about is the rules. However, they have been trained as interrogators way back when sometimes, sometimes quite recently, with the legal knowledge of what could and could not be done.

So I think it's fair to say that the interrogators on the scene were aware that the envelope was being pushed; that is, that things were being changed, that they were being allowed to do things that in intelligence school at [Ft.] Huachuca or wherever they went, they were told they could not do. And I have talked to interrogators who were aware at various times that suddenly they were being permitted [to do] things that they were not supposed to be doing; they had been told not to do. But [by] the same token ... they were hearing frequently and repeatedly that this was a new kind of war, that different procedures were needed, etc. So whereas some interrogators responded with great worry to these new procedures, I think others went along and saw them as necessary.

When you talk about Guantanamo, Abu Ghraib, ... you have this legal regime, but you get into problems very early on because in Afghanistan, the Taliban and Al Qaeda are not by presidential decision under Geneva Conventions protection as of the fall of 2001, officially in February 2002. So that means that most prisoners in Guantanamo, because they come from Afghanistan, are not under Geneva Conventions protection. On the other hand, in Iraq, the prisoners are under Geneva Conventions protection. You get a certain problem because of this, which is that in many cases you have the same interrogators. You have oftentimes the same documents, and you're essentially trying to define what can and cannot be done, or to put it in a more basic way, define what is and isn't torture in one way in Guantanamo and in a different way in Iraq.

And that is an unstable situation, particularly when you have interrogators, officers, intelligence officers and various other personnel traveling back and forth between Guantanamo, Abu Ghraib and Bagram in Afghanistan. So, as the Schlesinger commission report put it, these activities which were being used in Guantanamo "migrated" — that's their word — to Abu Ghraib. So the notion that things were more limited in Abu Ghraib and less so in Guantanamo, that you could do more there, completely broke down.

And we've seen in recent days that some of the more obvious and shocking images that we saw in the photographs from Abu Ghraib in April 2004, in fact those procedures of short-shackling people, forced nudity, use of dogs to induce stress, which is essentially using dogs to threaten prisoners, shackling them in stress positions, putting underwear on their head, women's underwear and so on, and humiliating them in very sexual ways — those things which were so dramatic in the photographs from Abu Ghraib were actually used in Guantanamo months, indeed as much as a year, beforehand in 2002, probably by the end of 2002. ...

What does the record tell us of [what] authorities in the Department of Defense, who were authorizing as interrogation methods based on the rules of the road, handed to the president of the United States, in the early going at Gitmo? Do we know?

We know that by the end of 2002, the highest levels of the Defense Department, which means of course Secretary of Defense Donald Rumsfeld, had authorized 26 procedures that had not been permitted in standard interrogations in the Army field manual on interrogation. These included various kinds of sleep deprivation, use of noise, use of dogs to induce stress and other very intensive interrogation procedures. Now, six weeks later, apparently because members of the Judge Advocate General's [JAG] Corps within the Navy objected to these procedures, a number of them were withdrawn. And it was that point that Secretary of Defense Rumsfeld gathered together this working group on interrogation.

But we know that Mr. [Mohammed al-]Qahtani, for example, the so-called 20th hijacker, ... was subjected to various very aggressive interrogation techniques that included sleep deprivation over many days, perhaps as many as 40 days, various kinds of active humiliation including putting him on a dog leash, parading him around the room, making him wear women's underwear, using female interrogators who straddled him, supposedly smeared on him fake menstrual blood. There's a whole list of things that are very familiar to anybody who studied what happened, for example, at Abu Ghraib on the other side of the world in Iraq. ...

Former Secretary of Defense [under Nixon] James Schlesinger conducted one of these investigations, used the immortal phrase this was "animal house on the night shift," the implications being that this is a bunch of soldiers, young soldiers; they're not supervised; they're abusing detainees when other people aren't looking. Well, if there's one thing that's been confirmed absolutely by now, it's that what you saw in those photographs and many other things that you didn't see in the photographs were a set of procedures that originated at Guantanamo. They were developed by American officers for use on Muslim prisoners, and those people who now have been punished in Abu Ghraib were using those procedures under supervision.

How did they migrate?

It's an interesting question how those procedures "migrated," in Schlesinger's words, from Guantanamo to Abu Ghraib. A number of things are clear. One is that the documents setting out interrogation procedures — and this is clear from one of the reports — were actively taken from Guantanamo to Abu Ghraib.

Second, the commander of Guantanamo, Gen. Geoffrey Miller, went on a visit in late summer of 2003 to help out at Abu Ghraib. Now, remember the time we're talking about. We're talking about the summer of 2003, several months after the fall of Baghdad, several months after the president lands on the USS Lincoln and proclaims that we have prevailed in the Iraq war. Well, in those few months, suddenly an insurgency has popped out of nowhere, Americans are being shot, suicide bombers are blowing up the United Nations and the Jordanian Embassy and many other high-value targets, and the United States essentially has no idea where this insurgency is coming from. They have no good intelligence. ...

So the question of getting intelligence in the late summer of 2003 was absolutely critical to the Bush administration and to the U.S. military. Gen. Geoffrey Miller — who had been the commander of Guantanamo and who was generally thought to be within the military to have done an efficient job of shaping up Guantanamo, of setting up teams of interrogators, so-called "Tiger Teams" who were efficient at getting information out of prisoners; who seems to have been a good commander of this place even though he wasn't an intelligence officer; he was an artillery officer by training — was sent on a mission to Abu Ghraib, to Iraq, in late August 2003. And his clear mission was to shape up what was going on in Iraq, to help us reform the detention system there so we can get useful, actionable intelligence out of prisoners in Iraq: We've got a lot of prisoners; we're not getting anything out of them. What do we do?

Gen. Miller gets on a plane. He takes with him many of his officers, many of his intelligence people. They fly over; they have a look at these various places. They issue a report which is now public, in which among other things they strongly advise that military police should be used to prepare detainees for interrogation, which is against Army doctrine and which we saw in the Abu Ghraib pictures — that is, soften them up, prepare them for interrogation, make them stay awake, use dogs on them, etc. He, according to many reports which I think are credible, he advises the use of dogs to induce stress. He advises many of these procedures which had been used at Guantanamo. So we know where the most obvious migration from Guantanamo to Abu Ghraib came from, and that's through the visit of Gen. Miller and his influence on the detention procedures within Iraq.

We also know that many of the same officers who had worked at Guantanamo and also at Bagram Air Base in Afghanistan — remember those prisoners, the Geneva Conventions did not apply to them either, then came and worked in Iraq. So part of the migration came about largely because of the urgency, the extreme urgency of officials at the highest level of the American government to get intelligence and to get it any which way you can. And that kind of pressure came down and eventuated in these procedures going from one place to another.

As many as 12 commissions have investigated what happened at Abu Ghraib. Generally speaking, what have they found? In the first place, why were there 12?

... The investigations themselves — there are a dozen of them depending on how you count — are a fascinating exercise in bureaucratic damage control. Anyone who wants to read these investigations can learn an enormous amount about what happened at Abu Ghraib, about what happened in Guantanamo, about the abuse of prisoners. One can read the statement of detainees, how they were abused. One can read descriptions in the Fay-Jones report and the Schlesinger [report] as well, very intricate descriptions of the kind of tortures that were applied. And then one can look at the actual conclusions and find to one's surprise that actually this stuff wasn't terribly serious and it's been taken care of.

In other words, the investigations themselves have a lot of very useful information in them, but the conclusions, as so often in government reports, tend to be political conclusions. You get a different message if you actually read what's in the report from what you get when you actually read what the investigator concludes in the executive summary.

Now, the entire investigation of Abu Ghraib and of torture within the American government is fascinating because it represents — whether this was figured out beforehand or not, I don't know — but a kind of brilliant bureaucratic strategy. What is that strategy? Well, if you look at the issue of interrogation, you can think of it as a kind of chain. It's a chain that starts at the bottom, where military police and interrogators are putting their hands on prisoners in Guantanamo, in Abu Ghraib, in Bagram Air Base. They're interrogating. They're doing whatever they need to do to get information out of these people.

Now, above them are intelligence officers who develop the interrogation plan. Above them are people who run the interrogation sites. Above them [are] the commanders, for example, the feeder commanders in Iraq or in Guantanamo, and farther up the chain, until you get to the Department of Defense, and of course the White House, people who make policy.

Now, that whole chain, when you look at the investigations, it's very interesting. Each investigation essentially takes a couple of links in the chain. That is, Fay-Jones looks at military intelligence. The Taguba report looks at the military police and so on. Each of them look at a couple of links.

There is no investigation that looks at the entire chain, that looks at the question of how policy, how what people decided in bureaucratic and executive officers in Washington actually determined what happened on the ground at Abu Ghraib, Guantanamo, Bagram and so on. ...

And that brings me to a second point which is very important: A military officer, whether they're a general, a colonel or whatever rank, can only look down the chain of command. They cannot look up it by definition. So all of these investigations have looked down the chain of command. None of them have raised and investigated the most important question, which is, how did American government policy affect and perhaps cause what was happening in the interrogation rooms? That is the key question for Americans to consider, and that is the question that has not been answered in any of these investigations.

So after investigation after investigation comes out, the political leadership can say: "See? We've investigated it." But in fact, when it comes to the question of policy and how decisions were made by people in the end of the trail, the people we elected, how what those decisions had to do with what happened in the interrogation rooms, that question has not been answered. In fact, it's not even been officially approached. And the investigations one by one, if you take them as a whole, can be seen as an attempt to avoid that central question of policy. ...

[If Americans read the reports, what would they learn?]

If Americans read these reports, they'd discover a couple of things. One is that the abuse was much more thoroughgoing and systematic than they had been led to believe. That is, we're talking about beating that happened day after day. We're talking about systematic use of sexual humiliation. We're talking about systematic use of stress positions — and this is handcuffing people with their hands behind their backs up on a window, very painful things; systematic use of dogs to threaten detainees; beatings of such an extent that people are beaten into unconsciousness. This is in the reports, that kind of abuse. They would see that, first of all.

Secondly, they would see that the conclusions of the reports in many cases very obviously diverge from what's in the body of the reports. Specifically, there's a thoroughgoing attempt to essentially blame everything that's done, all of the abuse, on the lowest-level actors present, which is the military police, and to shield from any notion that [military intelligence] participated or even knew about these procedures. Now, why is that?

Well, when you start to say that military interrogators, military intelligence, are in the room when the abuse is taking place, you are connecting that kind of abuse to policy. When you connect it to policy, you're connecting it to policy-makers. When you connect it to policy-makers, you're connecting it to power. And what is critical in all of these reports is a concern to break that chain. That is to say, that whether prisoners have been beaten, whether they've been violated with billy clubs, which happened, whether they've had their ears partly torn off, in what ways they've been sexually humiliated, threatened with rape, all of these other things — whatever happened, and a lot of things happened, military intelligence didn't know about it. ...

The reason that it's critical to do that is to break that chain between what was done in these rooms and the people who were actually making policy. And the military intelligence people are connected to people who were actually making policy.

So the theory behind the damage limitation — and we've seen this damage limitation now for over a year; it's been very effective — is to create a particular story and a story that Americans can live with, because this is an awful, shameful topic. They don't want to think about Americans abusing or torturing prisoners. Now, the story Americans can live with is this: that in a war zone, these young military policemen, at night, unsupervised, dealing with recalcitrant and annoying prisoners whose language they didn't know, began abusing them. And it's a terrible thing, but the reason it happens is because there wasn't anybody there to watch over what they were doing. The people in authority and responsibility did not know this was going on. It was happening at the night shift — "animal house on the night shift," as James Schlesinger said. Therefore, though we should condemn this, though those people should be punished, it had nothing to do with the larger American military project; it had nothing to do with the larger American government.

That is the story that the administration has with great discipline, admirable discipline, told to the American people since the Abu Ghraib photographs were made public in April of 2004. And even though the reports themselves, if you read them, undermine this story on almost all points, the story in large part has been accepted by the majority of the American people. Why? Because it seems plausible, because it's something they want to believe, and because none of them will sit down and read the reports.

When I said to Gen. [Paul] Kern, "What were your conclusions in the Fay-Jones [report]?," and he said, "We have investigated; we had all the papers, thousands of pages, and we came to a really hard conclusion, which is failure of command," what does he mean by that? What are the implications? It sounds pretty tough.

Yes. Not only Gen. Kern has mentioned failure of command, but the Schlesinger report has some very critical things to say about commanders as well within the body of the report. What is particularly interesting is most of these people — none of the commanders have been reprimanded with the exception, the single exception, and that's Brig. Gen. Janis Karpinski, who was busted down to colonel. But none of the people in actual positions of responsibility — I'm talking about [Lt. Gen.] Ricardo Sanchez; ... I'm talking about Col. Mark Warren, people who actually were in positions of responsibilities — have in fact not been punished. So we have several times people using the phrase "failure of command," but the interesting question is, how can there be a failure of command if none of the commanders failed? ...

The reports bring up another interesting technique, and that is — and we see this is in the so-called Schmidt-Furlow report, which was a report on what happened in Guantanamo. This report essentially says that many things were not abuses because they didn't violate policy, which is to say that things like the use of humiliating women's underwear, the use of menstrual blood, the use of the females in interrogation, the use of general humiliation, the use of prolonged sleep deprivation, the use of dogs to promote stress, etc. — all of these things, according to [Gen.] Schmidt and his colleague, are not strictly speaking abuses, because they are authorized procedures.

So you see here again a dichotomy between what is an abuse and what is policy. The people who are investigating what actually happened in the interrogation rooms say these things are extreme, but they're not abuses because they're permitted by policy-makers, and then the actual policies themselves are outside the bounds of examination. Very literally, military officers can again look down the chain of command and decide whether or not these soldiers and these interrogators have violated policy. They cannot look up the chain of command and try to decide whether these authorized procedures violate the law. And nobody, in fact, has done that.

[Why hasn't Gen. Miller been reprimanded?]

... I think it's very difficult for the upper levels of the military to justify reprimanding an officer when he has in effect been following policy developed by the administration. And however much pressure there might be from outside to do that, the military tends to resist. They're fighting a war. This man, whether it's Ricardo Sanchez or Gen. Miller, acted in good faith and thought he was following the law, so why should he be punished, particularly since he was doing things, in his view and perhaps in the view of the military, that were permitted by officials of the administration, including the secretary of defense?

And I would suspect that it's the military's view — and this is my supposition — that if these procedures should not have been allowed, and I think many in the military believe they shouldn't have been allowed, then it's up to the politicians to punish the policy-makers, because they're the ones who made the decisions. Why should the military, following these procedures that have been lawfully arrived at by the politicians, be punished? Therefore let Congress or the American people punish the policy-makers who made the decision. And at the end of the day, that's where the gap is. Those people are not punished, partly because of a very large failure of Congress, and particularly the Senate Armed Services Committee.

Does this reach Rumsfeld? Will a post-mortem on all of this five years, 10 years out, say, "That guy right there"?

I think it's very clear when you read the documents that the secretary of defense, Donald Rumsfeld, was involved very personally in approving procedures that went beyond the line of what is allowed in military law, and for that matter in civilian law, when it comes to what can be done to prisoners. His handwriting is on these documents. There's a famous document when he's approving 26 extreme procedures, one of which is forcing a prisoner to stand for five hours. And standing for five hours without moving is extremely difficult and extremely painful if you try to do it sometime.

The secretary of defense writes at the bottom after initialing this document in his own hand: "Why only five hours? I stand 8 to 12 hours a day." Now, that's a very peculiar annotation. What exactly does it suggest? The secretary of defense has a standing desk; that's where he works; therefore he stands most of the day. Of course people bring him coffee; he walks around; he sits down; he has a meeting. This is not the same as being forced to stand in a stress position. Does it indicate he has no idea what exactly the implications are of the procedures that he's approving? Perhaps to some extent it does indicate that. ...

One of the things a lot of people say, including [Deputy Assistant Attorney General at the Justice Department's Office of Legal Counsel] John Yoo, [is that] thousands of people came through these [prisons] ...; we're talking a few documented cases. Do you believe that?

The question of how much abuse took place at these prisons is a question we cannot answer now. It is clear that a lot of people were abused, and it's clear also that what I'm calling abuse was permitted by the procedures established by the U.S. government. People who quote statistics and say only 0.3 percent of prisoners were abused first of all are using statistics in a very deceptive way, because the numbers of interrogations and so on — 24,000 interrogations — things like that are hopelessly exaggerated, first of all.

Secondly, it begs the question of what indeed is abuse. Finally, it gets us away from the obvious question, which is that the way the U.S. interrogates prisoners was dramatically changed by the Bush administration after 9/11. It was changed in such a way to permit procedures that most people would consider torture, and I'm talking about water boarding and other procedures that in the rest of the world are certainly considered torture. That is the large question. ...

The questions of statistics become very interesting, because you get into issues of, for example, in Iraq, where one of the things that interrogators, many of whom I've talked to off the record, are most angry about when it comes to what's happening in Iraq is the fact that enormous numbers of Iraqis are being arrested — and this began in the late summer of 2003 — being put in Abu Ghraib and other prisons, and most of them have nothing to do with the insurgency.

Now, this is a matter of record. It said in the Taguba report and other reports that [somewhere] between 85 [percent] and 90 percent of the prisoners in Abu Ghraib had nothing to do — "were innocent" is the phrase in that report. But one can say "had nothing to do with the insurgency." They're picked up in sweeps — cordon-and-capture operations, the Army calls them. And after the Army arrests these people, they object to them being released. That is because releasing them quickly implies that they weren't doing their job, that the Army wasn't doing their job, so there's a great deal of pressure to keep them in Abu Ghraib [with] other prisoners. And this is enormously frustrating for interrogators who have to talk to people who they can tell within a few minutes have nothing to do with the insurgency and have nothing to tell them. In fact, their only purpose there is to waste the interrogators' time.

So if we want to get into issues of the percentage of abuses and number of interrogations, the only way to really consider it is to talk about who indeed in the prison has anything to do with the insurgency and might be a useful prisoner and a useful subject of interrogation. So those statistical questions are really kind of a snare and a delusion. And they take you away from the real question of what exactly is being done and has been done to prisoners. ...

The FBI e-mails, what story do they tell?

The FBI e-mails tell the story of FBI agents, special agents, who traveled to Guantanamo with the aim of interrogating prisoners and find there a regime of interrogation which they find worrying, disturbing and disgusting. And many of these e-mails, it's my impression, were written as the Abu Ghraib scandal was coming to the press, either just before it or just after it, when some of these FBI officials — and these are not liberal journalists; these are not human rights officials; these are people working for the FBI who are trying every day to protect the country from terrorism — after this stuff came to the press, many of these officials realized that they had seen abuses that they should record and report to their superiors.

So many of them sat down and wrote e-mails to their superior officers saying, essentially, "Here is what I saw." One of the most notorious is an FBI counterterrorism official who reported that on many occasions he would find prisoners shackled in an interrogation room, short-shackled to the floor in a fetal position. On several occasions the temperature was up above 100 degrees. This, remember, is Cuba in the summertime. The prisoner would have lost consciousness on many occasions. He had defecated or urinated on himself. And when the FBI person who wrote this e-mail said, "What's happening here? We have to do something about this," he was told by the soldier present that the interrogator had ordered this treatment and that the prisoner was not to be moved.

In one particularly notorious note, the FBI counterterrorism official says one prisoner was unconscious and had a pile of hair next to his head, and he clearly was so hot and miserable that he had pulled all his hair out during the night and left it basically beside his head. So the picture of Guantanamo depicted here is quite shocking, but what's most interesting is you're getting the view of FBI officials, who have a different way of doing business. They essentially believe that the way to get information, useful information, out of a detainee, out of a prisoner, is to develop a rapport, develop a reasoning relationship with them, and that eventually, over a long period of time, you will be able to break a prisoner. But you'll do it through conversation; you'll do it through clever stratagems in conversation. You won't use force, and you won't use abuse.

Partly this is, of course, because FBI agents have been trained to develop cases for legal consideration, so they come from a completely different history. But the FBI documents give us a very vivid picture of what was actually going on within the interrogation rooms. And these documents are coming to the public because of various lawsuits. ...

... In the spring [of 2004], things are so bad at Abu Ghraib and other places and the prisons in Iraq that Gen. [Jack] Keane and Secretary Rumsfeld himself personally decide that Miller's the man [to take charge].

That's right. One of the remarkable parts of the story is the man who is thought to have gotten Guantanamo together, to have developed interrogation techniques at Guantanamo that are bringing information out of these detainees, which essentially used dogs, which used various techniques of humiliation and so on, is then sent to Iraq to develop similar techniques at Abu Ghraib and other prisons. We see the results of those in the techniques in the photographs that so many Americans have seen. And when indeed it's thought that someone must be appointed in Abu Ghraib to essentially clean it up and get that situation together, who is it who is appointed? None other than Gen. Geoffrey Miller, the artillery officer who did so well at Guantanamo original[ly]. So we see this kind of path of this one officer moving throughout this scandal and this story.

There are those of course who say Miller was just a general. … He knew nothing about interrogation. He had no responsibility of interrogation. What do you think the truth in that is?

It's very interesting to me, and I think telling, that Gen. Miller was not an intelligence officer. He had not been trained in techniques of intelligence and more importantly, he had not been trained in what you can and cannot do. He was a man, apparently, who believed simply in getting things done. A man who was willing to break old rules, who probably didn't know very much about old rules, who was interested simply in results.

And the fact that he wasn't an intelligence professional, I surmise probably endeared him to some degree to the Secretary of Defense Donald Rumsfeld and others at the top of the Defense Department who emphatically were simply interested in results. …

I think, you know, it's a characteristic of this administration, not just Secretary of Defense Rumsfeld, but others in various parts of the administration, that they believe that there a lot of recalcitrant institutions within the government that are preventing them from fighting the war on terror as they should. And this includes people in the CIA, it includes people in other intelligence agencies. It includes people in the military, the justice department, etc. So throughout they have tried to push forward people who are willing to break eggs to make the omelets. And I think Gen. Miller is a good example of exactly that kind of officer. …

[Are the policies that were developed driven by a notion of American exceptionalism?]

I think on the one hand there is a notion, almost like the beginning of the OSS [Office of Strategic Services], we can now, as of World War II, we now have to make our own rules; we have to fight. We're not going to get any credit for having human rights laws. What we're going to get credit for is protecting the American people, and what we have to do, we have to do. And these old hidebound rules have to be broken. There's no question that that kind of attitude is there.

There's something a little bit different, too, which is I think that many in the administration believe that international laws, international institutions and indeed human rights laws themselves, are there partly as a way to inhibit American power; that those laws, those rules, the rules against torture, the rules against abuse, all of these rules are indeed themselves these cords binding Gulliver; that this is another way, in a sense of asymmetric warfare; that terrorism, on the one hand, is a way to attack the United States in a way that you can be successful, because you can't fight it on the battlefield. You can't fight it with mass tank warfare. You have to fight it asymmetrically. And similarly, I believe this administration thinks that international institutions which limit the power of the United States are another way, asymmetrically, to fight to the United States, to do it diplomatically, to do it legally, to do it asymmetrically through terrorism. So all of these things fit into one similar quiver of weapons. They all have to do with somehow opposing the power that's all powerful.

So some, I think, in the administration believe not simply that international law has been superceded. They believe that in the hands of our enemies, of American enemies, it can actually hurt the United States and hobble its power.

Brad [Berenson], the White House lawyer said: "Listen, yes, we've pushed the envelope; yes, the laws have been pushed out their on the edges. But we do have legal justification for these things from our own lawyers, and history will record that we had them, and we had them in our back pockets, and we went out and we did them. But by God, let me tell you something: The president of the United States — no president, especially this one — wants to stand in front of the American people post-9/11 and say: 'I didn't do everything I could. I didn't push it as far as I could.'"

I think that way of thinking, that "better to be safe than sorry," to put it in the homey way, permeates a lot of what's happened. Why are we keeping 8,000 prisoners in Abu Ghraib when the reports say that 7,000 have nothing to do with the insurgency? Well, in some sense, nobody wants to be the one to release these people.

Why are we keeping 400 or more prisoners in Guantanamo when most of these people don't have intelligence to offer, and even the ones who do have said all they're going to say years ago? Well, no one wants to be the one to release these people and stand aside while they commit some kind of crime or terrorist act. So no one wants to be in the position of doing anything that could eventuate into those television images and those deaths of Sept. 11, 2001.

And I think one thing that can't be or shouldn't be underestimated is the notion on the part of government officials of a kind of guilt; that is, they allowed the country to be attacked, and by God, they're not going to let it happen again. And they're not going to let something like human rights or international law or international institutions stand in the way of them protecting the American people. And they feel that very strongly, and they feel that, I think, justifiably.

But it means that their decisions when it comes to law, when it comes to conventions that the U.S. is adhered to, are very much in the form of favoring action over favoring what our settled institutions that have also protected the United States. So in their zeal to not have this happen again, there is this kind of self-righteousness that sets in which I think you can see post-9/11 in this administration.

In the end it's Osama bin Laden's ultimate revenge.

Yeah, I think that's very well said. It's interesting: Terrorism really is a kind of jujitsu. Do you know what I mean? Terrorism begins with the recognition that the party you're attacking is much stronger than you are, just like jujitsu, and you have to use the strength of that party against himself. So you have to make him act in a way and do things that you do not have the power to do. And in a sense, Osama bin Laden has been able to do that with the United States. It's been able to provoke the U.S., from Osama's point of view, into occupying a major Arab country. Now it's provoked the United States into doing that when the essence of Al Qaeda's ideology is the United States wants to occupy a major Arab country.

So in effect, the terrorist attacks were a chapter in the law of provocation: How do you provoke your enemy to do something you want your enemy to do?

And you get the ultimate prize, which is those pictures from Abu Ghraib. …

Absolutely. It's interesting, because when you think about those pictures, think of the notion of Osama bin Laden one day thinking, "How can I spread my ideology? Maybe I'll go to Madison Avenue and get an image that will actually work." And could you imagine an image more effective than that to spread his ideology across the Arab world — showing a Muslim man in a hood with wires coming from his genitals and coming from his fingers, being tortured by Americans?

Or for that matter, can you imagine an image more effective than Lynndie England standing there over a naked Arab man — an American female holding a naked Arab man by a leash to his neck? What could be a more pungent, perfect image of what Osama bin Laden stands for? The United States suppressed Arabs, suppressing their rights, suppressing their very existence, humiliating them. That is the essence of his ideology, and that photograph more than any other is a perfect, perfect crystallization of Osama's ideology. And you can see those images around the Middle East now. You see them on murals. ...

Documentary by Michael Kirk, featuring Mark Danner, John Yoo, Michael Scheuer, Janis Karpinksi, Michael Ratner, et al.

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