The New York Review of Books
Torture and Gonzales: An Exchange
By Mark Danner
and , G. Jan Lighthar and Robert S. Rivkin
February 10, 2005
To the Editors:
Mark Danner's article exposing the Bush administration's "piecemeal and dilatory" investigations into the Abu Ghraib prison torture scandal was excellent ["Abu Ghraib: The Hidden Story," NYR, October 7, 2004].
The responsibility for "enhanced interrogation techniques" gone awry will, some day, most likely be traced all the way up to the top. Although he referred to the President's lawyer, Alberto Gonzales, as hav-ing considered the Geneva Conventions "quaint," I do wish that Mr. Danner had also reminded NYR readers of other outrageous memos authored by highly placed administration lawyers.
In them, President Bush's lawyers provided (supposedly) legal justifications for torture of suspected terrorists. Probably the most shocking memo was dated August 1, 2002, and signed by Jay S. Bybee, then the head of the Justice Department's Office of Legal Counsel, the "conscience" of the Justice Department.
"As commander in chief, the president has the constitutional authority to order interrogations of enemy combatants," Bybee wrote. Further, the president of the United States, acting under his inherent powers as commander in chief, can lawfully order torture, without regard to federal criminal laws or international law. Any measure "that interferes with the president's direction of such core war matters as the detention and interrogation of enemy combatants would thus be unconstitutional." Even Congress lacks the power to limit presidential prerogatives, Bybee opined.
Americans should not be permitted to forget where Mr. Bybee is now. He is now a Ninth Circuit Court of Appeals judge. Bush nominated him and the Senate confirmed him without first having insisted on copies of his Justice Department memos.
Judge Bybee will now be deciding constitutional rights cases arising in the western United States for the rest of his working life. Another Bush nomination to a federal appeals court, that of William J. Haynes II, the Pentagon's general counsel, has been stopped in its tracks—due to his role in endorsing the Bybee viewpoint and pushing it on resistant career military lawyers. Having learned of Haynes's role in advocating harsh interrogating guidelines, Democrats have held up the Haynes confirmation. Of course, in the wake of the scandal, the Justice Department rescinded the Bybee memo, which, it said, was being "revised."
The most frightening thing about the Bush lawyers' memos is the totalitarian mindset that they reveal. In Nazi Germany, torture of "normal" defendants was considered to be unlawful. With "enemies of the state," however, it was a different story. According to Gestapo Chief Counsel Werner Best, "So long as the police force carries out the will of the country's leadership, it acts legally." What is the difference between the Gestapo lawyer's comment about the police force carrying out the "will of the country's leadership"—to justify torture, and Mr. Bybee's comment about the president's power to order any measure pursuant to his "core authority" as commander in chief—to justify torture?
Robert S. Rivkin
To the Editors:
I read the sorry story by Mark Danner about torture in Abu Ghraib with understandable indignation. It is sad that we have to admit that torture seems to be one of the nasty sides of human nature. Many others, all civilized nations, have done the same thing, always approved or condoned by the highest authorities: the French in Algiers, the Germans during the war, the Russians, the Chinese, the British, and we ourselves, the Dutch, during our colonial wars, and many others. Everybody has his black page in his history.
However, what is particularly revolting in what is happening in Afghanistan, Guantánamo, and Iraq is the incompetent and dilettantish way in which the Americans go about it and all the gratuitous cruelty they inflict.
In the first place, they torture the wrong people, secondly they torture too many, and thirdly for too long. It is useless to ask everybody everything you would like to know. On the whole, people know little, and certainly not the details you are after. When a fellow does not know anything he cannot tell you anything. This you can find out in five minutes. It means that you caught the wrong fellow and you send him home. Torture is very difficult to endure. In the resistance under the German occupation (Mr. Bush would call me a terrorist) we knew it and accepted it. (Stories of people who let themselves be tortured to death rather than give up their secrets are schoolboys' adventure stories.) We protected ourselves with small cells and rapid communications so that we were warned when some- body who knew our address was caught.
If then, by a lucky strike, you catch a member of the resistance, he usually knows very little, a few addresses, an arms cache, the way they fight which you know already. No names because they can be invented and cannot be checked. High-level strategy or the command structure? Don't make me laugh. The system is mostly too decentralized than that you can get more than a few snippets even from a relatively high commander. In each case you get what you want in a few days and do not need to torture people for weeks on end. Anyway, the persons you want you won't catch by picking up suspicious-looking men in the street. Besides, suspicious to whom? To an honest marine from the Middle West who has not seen anything but his own village?
The same applies to the prisoners at Guantánamo. These were front-line soldiers of the Taliban picked up after they had lost the battle. What could they possibly know about al-Qaeda? It has been all so unintelligent and such a waste of effort and everything else. They shoot with cannons at sparrows, a lot of brawn and little brain, and lots of unnecessary cruelty.
G. Jan Ligthart
Pozzo della Chiana, Italy
Between the publication of my article, "Abu Ghraib: The Hidden Story," and the receipt of these letters, and mainly thanks to the President's nomination of Alberto Gonzales to be attorney general and the hearings that followed, we have had a public discussion of the "outrageous memos authored by highly placed administration lawyers" to which Mr. Rivkin refers. (The memos, and a great many other documents associated with administration policy on interrogation, were leaked in the wake of the broadcast of the photographs of torture at Abu Ghraib, presumably by government officials who opposed administration policy. They are published in full, along with the photographs and many other critical documents, in my current book, Torture and Truth: America, Abu Ghraib, and the War on Terror.)
As White House counsel Mr. Gonzales served as "point man" directing the administration's policies on interrogation, and presided in particular over two major decisions. First, he strongly advised the President to withhold Geneva Convention protection from prisoners taken in Afghan- istan, an unprecedented position that the Bush administration, after considerable debate, adopted. Second, he solicited a memo from the Office of Legal Counsel in the Department of Justice that, as Mr. Rivkin says, declares that the president, under his war powers as commander in chief, can "legally" order torture to be applied. The memo, which is dated August 2002, also "redefines" the meaning of the word "torture" as it appeared in domestic statutes and international treaties which commit the United States to prohibit its use.
By defining torture very narrowly—as an activity that causes pain "equivalent in intensity to the pain accompanying serious physical injury such as organ failure, impairment of bodily function, or even death"—this memo, by a kind of repellent verbal sleight of hand, makes it possible to treat many practices that plainly are torture, and are so recognized throughout the world, as something less than that. Thus "waterboarding," for example—the practice of stripping prisoners and submerging them until they have nearly drowned— which is a favorite of torturers around the world and which, as I discussed in my article, Americans have used on al-Qaeda prisoners, could be considered under this memorandum to be a legal practice.
According to a report in The New York Times on January 13, subsequent and still- secret memorandums explicitly approved the use of waterboarding as one of twenty additional "interrogation practices" that intelligence officers were permitted to use. Though these memos were apparently intended to guide the CIA, at least some of their content—in particular, entire paragraphs drawn verbatim from the Bybee memorandum of August 2002—was incorporated into the Pentagon's Working Group Report on Detainee Interrogations in the Global War on Terror of April 2003. Our picture of discussions within the administration remains incomplete, a jigsaw puzzle still missing many pieces; but it is no longer tenable to claim, as administration officials up to and including Mr. Gonzales repeatedly have done, that these were "advisory" opinions which had no direct effect on how detainees were treated. What these policymakers decided and wrote had a direct effect on how detainees were treated.
President Bush's decision to nominate the man instrumental in making torture "legal" to be the chief law enforcement officer of the United States offered the occasion for a full public debate of these issues. Though a number of Democratic senators, and at least one Republican, pressed Mr. Gonzales for answers, the result was mostly obfuscations and, occasionally, downright lies. Senator Patrick Leahy, Democrat of Vermont, described the August 2002 memo and asked the nominee bluntly, "Did you agree with that conclusion?"
Gonzales: Senator, in connection with that opinion, I did my job as counsel to the President to ask the question.
Senator Leahy: I just want to know, did you agree—we can spend an hour with that answer, but frankly, it would be very simple. Did you agree with that interpretation of the torture statute back in August 2002?
Gonzales: If I may, sir, let me try to give you a quick answer, but I'd like to put a little bit of context. There obviously we were interpreting a statute that had never been reviewed in the courts.... I don't recall today whether or not I was in agreement with all of the analysis, but I don't have a disagreement with the conclusions then reached by the department. Ultimately, it is the responsibility of the department to tell us what the law means, Senator. [Emphasis added.]
This is a shocking answer. Though the administration had distanced itself from the so-called "torture memorandum" soon after it was leaked last June, and had quietly issued, a week before Gonzales was scheduled to appear before Congress, a more restrictive memorandum to replace it, Mr. Gonzales declined to dissociate himself from it. Instead, he implied that in the matter of interpreting and defining torture, and in making it possible for the government to apply it broadly, his hands were essentially tied: it was "the responsibility of the department [of justice] to tell us what the law means"—though common sense suggests, and reports in The New York Times and elsewhere confirm, that the White House, and Mr. Gonzales himself, were instrumental in seeing that the Justice Department lawyers delivered the conclusions that the President wanted.
That Mr. Gonzales could state, after the revelations from Abu Ghraib, Guantánamo, and elsewhere, that he still does not "have a disagreement with the conclusions then reached by the department"—conclusions that subsequently formed part of a Defense Department Working Group Report on torture, and, through this and other channels, had a direct effect in setting interrogation rules that allowed torture and, so far as we know, still do allow it—is frankly appalling.
But appalling to whom? In answering as he did, Mr. Gonzales demonstrated a cynicism about Americans' fundamental lack of concern about these matters that was more than borne out in the response, or rather the lack of it, to what he said. The hearings offered Congress yet another chance to perform a critical duty it has so far scarcely begun—to investigate fully how it came to pass that Americans tortured prisoners; to identify those officials, from the mid-level of the military chain of command up to the highest levels of the American government, who were responsible for approving its use; and to open the way for appropriate punishment. Yet the hearings themselves, before a Republican Senate in what has become essentially a one-party government, accomplished no such thing. Chances are very good that Mr. Gonzales will be duly confirmed, a step that will send a strong signal to the rest of the world that the policies he presided over retain the approval of the United States government and the American people.
During the hearings, Senator Lindsey Graham, Republican of South Carolina, pointed out that these policies "put our troops at jeopardy" and damage the country by causing it to "lose the high ground" in the war on terror. But though Senator Graham, a conservative and a former military lawyer, was almost alone in mentioning the fact, it is "on the ground" that the effects of the decision to use torture can be most clearly seen.
Though we still lack many details of what American interrogators did at Abu Ghraib, Guantánamo, Bagram, and other prisons, and what they are still doing there, it seems clear that at Abu Ghraib Americans imprisoned many Iraqis who should never have been arrested. As early as October 2003, US military intelligence officers told representatives of the Red Cross "that in their estimate between 70 and 90 percent of the persons deprived of their liberty in Iraq had been arrested by mistake." In his report on Abu Ghraib last summer, General Fay quoted a sergeant assigned to the Abu Ghraib Detainee Assessment Board —the body responsible for deciding whether prisoners should be released—as estimating that "85"“90 percent of the detainees were of no intelligence value."
It is no mystery why this is so. The Americans' bewilderment in the face of the growing insurgency during the summer and fall of 2003, and their increasingly desperate need for "actionable intelligence" to confront it, led American combat troops, in the words of General Fay, "to round up large quantities of Iraqi personnel [that is, civilians] in the general vicinity of a specified target." This so-called "cordon and capture technique" quickly filled Abu Ghraib with Iraqis who knew nothing whatever of the insurgency. And though it quickly became clear that these prisoners "had no intelligence value," they stayed in prison, for American combat commanders "did not concur with the release of any detainees for fear that a bad one may be released with the good ones." Mr. Ligthart quite rightly observes that "it is useless to ask everyone everything you would like to know," but the fact is that the great majority of these prisoners were never interrogated at all. Among this group seem to fall at least some of those in the notorious photographs, who were being "punished" for rioting and other violations of the rules within Abu Ghraib.
Others shown in the photographs, however, and many not depicted there, seem indeed to have been legitimate "intelligence targets" and though Generals Taguba and Fay and other investigators of the Abu Ghraib scandal have described in detail some of the torture inflicted to "soften up" these prisoners before interrogation, we still know relatively little about what intelligence soldiers and officers did to them during the interrogation sessions themselves. On December 4, Eric Schmitt of The New York Times, citing the still-unpublished report compiled by the naval inspector general, Vice Admiral Albert T. Church, writes that "at least 20 substantiated cases of abuse occurred during interrogations, contrary to the Pentagon's original claims."
Mr. Ligthart, drawing on his experience in the Dutch resistance during World War II, notes that guerrilla organizations protect themselves "with small cells and rapid communications so that [they are] warned when somebody...[is] caught," with the result that if "by a lucky strike, you catch a member of the resistance, he usually knows very little, a few addresses, an arms cache, the way they fight which you already know." American intelligence officers are doubtless perfectly aware of this fact, and have relied on the painstaking collection and collation of small bits of information, hoping to construct thereby a useful picture of the broader insurgency.
Many readers will remember the vivid description of this process by the fictional French Colonel Mathieu in Gillo Pontecorvo's film The Battle of Algiers, in which Mathieu, standing before his paratroopers, chalk in hand, demonstrates the pyramidal structure of the FLN insurgency by carefully sketching out a spreading system of self-contained cells. John F. Burns of The New York Times, writing from a Marine command center near the Iraqi town of Iskandariya on November 28, has shown us the contemporary equivalent:
A chart of suspected rebels that was developed over months by American intelligence officers and Iraqi undercover agents, laid out like a genealogical table, measures 10 feet by 4 feet. Unrolled in the command center..., it lists hundreds of rebel leaders, financiers and fighters, grouped together by family, by tribe and by past links in Mr. Hussein's military, political, and intelligence apparatus.
While Mr. Ligthart is quite right to point out that any given prisoner will know little about the broader organization of the insurgency, the path to understanding that structure nonetheless runs partly through the interrogation of those prisoners and the careful assembly of what information can be gained from them. The question is not whether captured insurgents should be interrogated but how it should be done not only to adhere to the law but to maximize the intelligence gained while minimizing the political damage done in what is, at bottom, a political war—a war that depends for its success on Iraqis' trust in the American occupiers and their willingness to supply US troops with information which will lead to successful operations against the insurgents. All evidence suggests that that trust is now very low, in part because of the enormous damage done to the reputation of the Americans by the Abu Ghraib scandal itself. All evidence suggests, in other words, that the Americans' use of torture, among other things, has been a great boon to the insurgents, and to al-Qaeda as well.
Thus Mr. Ligthart's broader point, that Americans "torture the wrong people, torture too many, and for too long." It is hard not to believe that, in the case of Abu Ghraib and Guantánamo—where, all evidence suggests, many prisoners, "front-line soldiers of the Taliban," have little useful to tell interrogators—any gain in intelligence is very likely far overwhelmed by the political damage done, not only to the war in Iraq but to the broader "war on terror."
As I pointed out in an earlier article, it falls to our political leaders not only to ensure that the law is followed but to weigh the damage such violations of it might do to the broader interests of the country. It has become increasingly clear that these leaders are incapable of carrying out either responsibility. In this the Gonzales hearings will be seen as a watershed. The documents that have been revealed have brought no cleansing; in effect their publication has made all Americans party to the decisions they recount.
We have had the revelations. What we have not had, and what we can clearly not expect anytime soon, is a full investigation into how torture became American policy and who was responsible. These officials remain where they are and all Americans now bear the burden of the decisions they have made. The scandal is not what is to be revealed but what we already know.
—January 13, 2005
 Ingo Müller, Hitler's Justice: The Courts of the Third Reich(Harvard University Press, 1991).