The Bush Administration Torture Policy: Origins and Consequences
In March of 2002, US intelligence and law enforcement agents, in collaboration with Pakistani security forces, raided a compound in Faisalabad, Pakistan, where they captured the first “high value detainee” in the War on Terror. Their target, Abu Zubayda, was the alleged logistics chief of Al Qaeda, an organization he joined after teaming up with the jihad against the Soviet Union during their war in Afghanistan. In the raid, he suffered three gunshot wounds, but remarkably survived; but he continued to suffer complications from them long afterward. In any event, the United States believed he possessed critical information about Al Qaeda operations and possibly the location of Osama bin Laden, who had recently escaped during the Battle of Tora Bora in December.1
Though the circumstances of his treatment remain thickly veiled in secrecy, it is known Zubayda was eventually flown to a CIA black site in Udorn, Thailand. There, he was subject to harsh interrogation techniques, some of which had been reverse-engineered from the Army’s Survival, Evasion, Resistance, Escape (SERE) program—a program developed to teach US forces at high risk of capture how to “resist various forms of torture and other extreme forms of abuse.”2
At the black site, Zubayda was forced into a wooden box that was not tall enough for him to sit up straight and made to stay there for extended periods of time, occasionally overnight.3 After being placed inside, a blanket would be placed on top of the box, which cut out air circulation and made the box hot and sweaty. Since the box was so small, Zubayda was forced into uncomfortable positions, and, the wounds he suffered during his capture would occasionally reopen.4 The purpose of this treatment, according to James Mitchell, the psychologist on contract with the CIA to provide advising on interrogation techniques, was the need to treat him “like a dog in a cage.”5 When CIA director George Tenet explained to the President that Zubayda’s sedation from painkillers was interfering with the CIA’s intelligence gathering, the President reportedly retorted, “Who authorized putting him on pain medication?”6
Secret Justice Department memoranda, released in April 2009 by the Obama Administration, would later prove the extent of the techniques used on Zubayda and others. In the May 30, 2005 memo, it was revealed that during his confinement, Zubayda had been waterboarded 83 times.7 The process, described thoroughly in Jane Mayer’s The Dark Side, involved strapping Zubayda down with restraints on a gurney-like table, putting a cloth over his head, and pouring water over the cloth to create the experience of drowning. In order to prevent adverse effects, the table was calibrated so it could be adjusted into a vertical position, which according to Zubayda caused the straps to put so much pressure on his wounds that the pain made him vomit. The repeated uses of this technique were so traumatic Zubayda would at times urinate on himself.8
The capture of Abu Zubayda as one of the first high-value detainees in the War on Terror was one of the driving forces behind the formulation of the administration’s policy on harsh interrogation techniques. But his capture and treatment do not tell the entire story. Though the accounts of his and other detainee treatment may be shudder inducing, one of the most important developments during the Bush presidency was the outcome from deliberations among senior administration officials just after September 11th on the handling of detainees captured during the War on Terror. The executive actions that followed provided the Bush administration’s interpretation of some of the earliest foundational principles of America’s constitutional system, one founded on traditions of separation of powers, due process, and the rule of law. Understanding of these early decisions is crucial to grasping the administration’s reshaping of America’s long-held principles and values in fighting the War on Terror.
Above all, this paper strives to answer a simple question: How did we get here? The decision-making process on the subject of detainee treatment is perhaps best understood through two key events that occurred in the second year of the Bush presidency: the President’s February 7, 2002 memorandum of understanding vacating the Geneva Conventions, and the legal memos issued by the OLC on August 1st, 2002. To say nothing of the actual consequences of these documents, there truly is no better authoritative source for the administration’s interpretation of the two most applicable legal obligations on the subject of detainee treatment. As such, the bulk of this paper will be devoted tracing the decision making-process that led to the administration’s interpretation of these two legal obligations, the Geneva Convention of 1949, and the UN Convention Against Torture.
While the decision-making process is central to understanding the foundation of the administration’s detainee policy, it tells us nothing of its implications. Inherently, the consequences of these documents need at least some discussion, and mine will focus on taking a look at some of the forces unleashed on organizations that seek to professionalize the use of torture, and discuss in particular how those forces manifested in US detainee policy. I will then conclude briefly by providing some thoughts on where we should go know, knowing the problems that have arisen during the War on Terror remain largely unresolved.
There are a number of international and domestic statutory provisions that apply to the treatment of prisoners of war or other detainees during periods of armed conflict. During their attempts to interpret these provisions in the wake of the September 11th attacks, the ones that drew considerable attention among administration officials were the Geneva Convention of 1949, the UN Convention Against Torture and Other Cruel Inhuman or Degrading Treatment, and the domestic codification of the Convention Against Torture, 18 U.S.C §§ 2340-2340A. The locus for renewed interpretation of these legal obligations came when US forces began capturing Taliban and al-Qaeda personnel in December 2001. Soon afterward, the Department of Defense, Justice Department, and White House legal team began to consider the application of the Geneva Conventions in the War on Terror.9 The President eventually signed an executive order outlining his understanding of the applicability of the Geneva Conventions, but the story of how the President came to sign that order deserves mentioning, as the various camps that emerged on either side of the order would continue to define the sources of contention within the administration for years to come.
The Geneva Conventions
The story of the Bush administration’s interpretation on the applicability of the Geneva Conventions in the War on Terror begins decades earlier with the administration’s Undersecretary of Defense for Policy, Douglas Feith, Feith had an extensive background working on national security policy in Washington, and he first gained attention in this area in the 1980’s when he served in the Reagan administration. At the time, he argued that terrorists did not deserve protection under the Geneva Conventions—a decision that was rooted in the passionate Zionist’s desire to oppose protection of anti-Israeli terrorists.10 His background on the subject made him a valuable player early on in the process, and his significant role throughout the course of the deliberations can be symbolized by his making of the final pitch to the President on the order to vacate the Conventions; which he later recounted to Philippe Sands in the book Torture Team.11 Feith was one of the “earliest and most ardent supporters” of the new interpretation of the applicability of Geneva; an interpretation which denied POW status to members of the Taliban and al Qaeda on the basis that they were ‘illegal enemy combatants” not covered by the Conventions, and that because Afghanistan was a “failed state” it was no longer a party to the Conventions it had signed.12
It may come as a surprise that in the beginning United States Central Command proceeded on the basis that Geneva applied after it started capturing al-Qaeda and Taliban forces in Afghanistan. This approach governed the initial treatment of detainees like John Walker Lindh and David Hicks, who were American and Australian nationals.13 The legal memos that laid the foundation for the shift away from the Geneva Conventions—a shift supported by many in the administration and pioneered by Feith—were a result of misgivings by the so-called “War Council” of David Addington, Jim Haynes, John Yoo, Tim Flanigan, and Alberto Gonzales about applying the Conventions to al Qaeda terrorists once they had been caught by the US. They were especially concerned with the “conundrum,” as Associate White House Counsel Bradford Berenson called it, of the lack of options they had in handling the members: the administration was not able to execute those they captured, release them, or bring them into the criminal justice system, which they viewed as jeopardizing national security.14 These concerns were first articulated concretely in a January 9, 2002 draft memo from the Office of Legal Counsel to Jim Haynes, top lawyer at the Pentagon, and provide the first point at which the push to abandon Geneva Convention applicability really gains steam.
The January 9th draft memo, written by John Yoo and Robert J. Delahunty, was one of the first internal documents after the onset of the War on Terror to conclude that the Geneva Conventions did not apply to al Qaeda terrorists or the Taliban. The author’s reasoning in denying these protections revolved around two separate arguments, one specific to each al Qaeda and the Taliban. First, with regard to al Qaeda, they reasoned that the organization was a new kind of enemy, and because it was not a state, one that could not be party to the international agreements that apply in armed conflicts among states. In addition, the Taliban was a militia in a “failed state,” and though Afghanistan had signed the Conventions, because of this declaration the Taliban could no longer claim their protection.15 The OLC advice was quickly taken to heart by the Defense Department, where Defense Secretary Rumsfeld issued a memo to the Joint Chiefs of Staff on January 19, 2002, declaring individuals under control of the Defense Department were not entitled to prisoner of war status under the 1949 Conventions.16
Though it appears from these descriptions the process of reinterpreting the applicability of the Geneva Conventions was going smoothing, the understanding among many senior officials on applicability was not without detractors. At the State Department, which was host to many of the later foes of other senior administration officials, could lay claim to much of the discontent. William Howard Taft IV, Colin Powell’s legal advisor and great-grandson of the former president, penned a forty-page memo two days after the OLC draft memo to John Yoo which argued Yoo’s analysis was “seriously flawed,” “untenable,” “incorrect,” and “confused,” and that it could open up the President to prosecution for war crimes.17 Another former State official said, “There is no such thing as a non-covered person under the Geneva Conventions. …The protocols cover fighters in everything from world wars to local rebellions.”18Continued on Next Page »