War Powers, War Lies: Part 8: Playbook

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War Powers, War Lies: A Series

Part 8: Playbook

Published in the Maryland Daily Record August 26, 2005

            Last time, we considered the way the Bush Administration lawyers rearticulated Presidential war powers to enable U.S. forces to capture Muslim men around the world and hold them incommunicado, potentially forever.  We reviewed how this “new paradigm” did not pass muster with the Geneva Conventions or customary international humanitarian law.  What we did not address was why.  What motivated the President’s men to adopt this risky and illegal course? 

            The official rationale was that the detainees were enemy combatants.  The evidence is overwhelming that this was often false, and that the U.S. knew it.  The dragnets that had netted our captives were indiscriminate.  In Afghanistan, our untrustworthy Northern Alliance allies would inform on their rivals, and we would seize them without investigation, often without taking statements from the accusers we could later use.  In Iraq, we followed extremely messy “cordon and capture” tactics bereft of quality control.[1]  (Coalition military intelligence officers later admitted to the International Committee of the Red Cross that between 70% and 90% of the Iraqi detainees had been arrested “by mistake.”)[2]  Consequently, as Eric Saar’s 2005 book about his experiences as a translator at Guantanamo, Inside the Wire, makes clear, many of the captives on his watch there were understandably accused of nothing by their captors.  The White House in truth was not so concerned about keeping illegal combatants out of circulation; its main motive was a quest for “Actionable Intelligence,” meaning under present circumstances advance knowledge of where the next Al Quaeda or Iraqi insurgent blow would fall. 

            Occasionally interrogating Muslim captives did lead to Actionable Intelligence.  The May 8, 2002 capture of Jose Padilla, accused of being sent to the U.S. to deploy a “dirty bomb,” was reportedly the result of such questioning.  (Whether this was actually Padilla’s objective remains undetermined, but his arrest, a form of “Action,” could at least be credited to interrogation intelligence.)  Other intelligence coups may well be unreported.  But mostly the information obtained was trash.  Alarmed, the Bush Administration dispatched a CIA analyst to Guantanamo in the Fall of 2002.  As Seymour Hersh reported,[3] the analyst concluded that more than half the detainees did not belong there.  They were neither jihadis nor possessed of Actionable Intelligence.  Rather than accept that it had been barking up the wrong tree, the Bush Administration decided to fix the problem by intensifying the interrogations. 

            The Administration already had legal clearance.  Marking out the contours of torture like the boundaries of a minefield, we were deemed free to do everything else, no matter how inimical to American values or international standards, to force our captives to talk.  The key rationalizing came from Jay Bybee of the Office of Legal Counsel (since rewarded by being elevated to the 11th Circuit bench).  In a lengthy August 1, 2002 memo to Presidential Counsel (now Attorney General) Alberto Gonzales — a memo which the Administration refused either to classify or to make available to Congress, although leaks unmasked it — Bybee parsed out the definition of torture so it consisted of very little.  It was not merely a matter of inflicting pain or discomfort or mental anguish to make someone talk; it had to be pain of a “level that would ordinarily be associated with a sufficiently serious physical condition or injury such as death, organ failure, or serious impairment of bodily functions.”  That memorable phrase had been wrenched out of context from statutes defining pain whose emergency palliation Medicare reimburses.[4]  But there is a world of difference between policies about pain we pay to alleviate and policies about pain we choose to inflict.  The moral implications are quite distinct.

             In fact, precisely because of its moral aspect, recognizing torture is like recognizing pornography.  To paraphrase Justice Stewart, we know it when we see it.  And torture we know by the line from a thousand old war movies: We Have Ways of Making You Talk.  Any pain, discomfort, mental anguish, or threat of the above, inflicted to force talk from a prisoner who wishes not to talk — that’s torture, and we all know it, and shame on anyone who says otherwise.  It has nothing to do with whether it makes the prisoner feel as if his kidneys are failing, or whether statute or treaty has described the exact way the anguish was inflicted.

             And every time, despite Bybee’s (dare we say it?) painstaking and tortured analysis, Bybee nearly found himself acknowledging this plain truth, he escaped by playing his trump card: Presidential warmaking power, the Bush lawyers’ talisman.  Torture, it seems, is a right constitutionally guaranteed our President in his role as Commander in Chief, in charge of our Nation’s defense.  Bybee commented that torture of individuals possessing foreknowledge of imminent attacks “would be justified under the doctrine of self-defense.”  “If hurting [the prisoner] is the only means to prevent the death or injury of others put at risk by [actions of co-conspirators], such torture should be permissible, and on the same basis that self-defense is permissible.”[5]

             In other words, the Jack Bauer justification.  For readers living under a rock the last few years, Jack Bauer, the hero of Fox Network’s 24, repeatedly tortures people – mainly but not all bad guys – to elicit information utterly crucial to heading off imminent national catastrophe, the Holy Grail of Actionable Intel.  But at Guantanamo and Abu Ghraib, there have apparently been few Holy Grails.

             Bybee distinguished from torture lesser forms of pressure called “cruel, inhuman and degrading treatment.”  And there you had Bybee’s argument in essence: torture would of course be wrong, but hooray for that cruel, inhuman and degrading stuff.  Unless, of course, we got up that particular morning feeling like Jack Bauer confronting an emergency, in which case the torture was fine too.  Official U.S. policy (though concealed from the U.S. citizenry).

             There followed a lot of memo chatter among military lawyers trying to put this singular distinction into practice.  And at some point Bybee added a second memorandum on specific practices, and soon-to-be federal judge and then Homeland Defense Secretary Michael Chertoff briefed the CIA on what coercive interrogation it could perpetrate. (The Administration is still successfully hiding the second Bybee and the Chertoff memos from us.)  Amongst these memos, there developed a playbook of permitted practices.  The playbook is not possible to summarize precisely, and it is not terribly important to do so, because the metaphysical lawyers’ line between Torture and Not Torture was probably never seriously meant to be observed.

             And even if the lawyers were serious, the evidence suggests Secretary Rumsfeld and his people never meant to play along.  Rumsfeld was upset with the lawyers’ interference anyhow.  On ten occasions in the two months after 9/11, military lawyers had withheld approval of strikes on senior Al Quaeda and Taliban officials so long that by the time approval was received, the targets had moved out of range.  At this point, as Seymour Hersh reports, friendly foreign intelligence services were reporting to us intelligence they had obtained with torture.  A former official told Hersh that they “would tell us, We pulled out teeth and fingers from a prisoner, but we got some good shit.  He’s dead now, but we don’t care.”[6] 

             Hence Rumsfeld insisted upon and received a so-called special-access program.  It was comprised of special operations personnel from the Army and Navy, and CIA officers, and shadowy civilian contractors.  They were given a “black budget” and operated almost without accountability — a fortiori without accountability to the lawyers.  According to Hersh, the SAP “was given blanket advance approval to kill or capture and, if possible, interrogate high-value targets.”  This program, among other accomplishments, organized Guantanamo and Abu Ghraib.

            The key organizers, it appears, were Undersecretary of Defense Stephen Cambone (who brought the SAP into the Iraqi prisons), Lt. Gen. William Boykin (notorious for a speech in which he equated the Muslim world with Satan), and Maj. Gen. Geoffrey Miller (in charge of the interrogation program first at Guantanamo and then at Abu Ghraib).  The world largely came to know their handiwork from photos sampled on Sixty Minutes II on April 28, 2004.  As horrifying as the photos looked – hooded men, men being sexually humiliated in a myriad of fashions, men being terrorized by dogs – they seemed to be approximating, in a rough way, what Bybee had described in his 2002 memo: cruel, inhuman, and degrading, but probably not inflictive of “severe pain.”  Later, we learned of more Jack Bauer-ish behavior: detainees beaten to death, held immobile for hours in the hot sun, stripped and placed in freezing environments, raped, subjected to extreme sleep deprivation and prolonged loud noise, threatened with death by interrogators pointing guns at them, actually shot in non-lethal places, subjected to electric shocks, hung up for hours in excruciating pain.  

            But apparently the SAP brain trust were particularly taken with the very techniques practiced in Abu Ghraib Tier I-A where the notorious photos were shot, and at Guantanamo in Eric Saar’s presence: sacrilege and sexual humiliation. When the International Committee of the Red Cross reported in February 2004 on our various Iraqi detention centers, they noted that at all of them, there seemed to be a single playbook – the real playbook – of practices focusing on the sexual and religious humiliation of those detainees deemed “high value,” i.e. most likely to yield Actionable Intel.  This perverse playbook seems to have been shaped largely in response to a 1973 book, The Arab Mind, reportedly widely circulated in U.S. conservative, military, and expatriate circles before the Iraq invasion.[7] Its author, Raphael Patai, emphasized Arab sexual taboos and fear of humiliation.  Apparently, therefore, sexual humiliation was felt by General Miller and his people to be key to overcoming resistance; hence the forced masturbation, the sexual displays, the adorning of male detainees with female underwear.  

             Lt. Gen. Anthony Jones’ August 23, 2004 internal report cleared General Miller from blame for anything worse than negligence in having allowed these excesses.  However, under the heading of “Coincidence? I think not,” compare the treatment of the detainees at Guantanamo on General Miller’s watch personally witnessed by Eric Saar, right down to the sexual humiliation element, to the treatment of the Abu Ghraib detainees once Miller took charge there (marked by a prolonged early September 2003 visit).[8]  The classic note is sounded in Saar’s account of a female interrogator pretending to sprinkle a detainee’s face with her own menstrual blood to force him to reveal his reasons for attending an American flight school.  This playbook traveled with Miller.  The conclusion is obvious. 

            The official stance now seems to be that we never tortured (except for a few rogue MPs) and now we’re going to stop.  None of this is credible, though it would make sense from a strictly tactical viewpoint not to bother with pursuing unreliable or nugatory intelligence through torture.  (When Mohammed al-Qahtani admitted under CIA torture that he had been intended to be the 20th 9/11 hijacker, an instance cited by those who think torture sometimes yields Actionable Intel, he was in fact only telling interrogators what they already knew from other sources.)  The fact is, we’re not stopping.  The British paper the Guardian reported in December that torture continues at Guantanamo, and the Washington Post reported in January that the only change in the Iraqi torture situation since Abu Ghraib is that we have largely turned the job over to the Iraqis — and not just any Iraqis, but specifically the very men who used to perform that function for Saddam Hussein. 

            Torture has not made us demonstrably safer.  In Iraq the Jack Bauer justification might apply if torture were leading to us stopping the bombings of our forces.  It’s not; from August 1 through August 11, the date of this writing, 46 U.S. armed forces members have been killed, the majority by bombings, a rate of 4.18 a day.[9]  The Jack Bauer test might even be met if torture had led to the capture of Osama bin Laden, but it hasn’t.  Torture failed to prevent the London subway bombings.  If there is any convincing evidence that torture has stopped even one imminent Al Quaeda atrocity, the government has not shared it.  Torture is the atrocity.  We should never have arrogated it to our war powers.  

[1]   Mark Danner, Torture and Truth (2004) at 30-31.

 [2]   Danner at 257.

[3]    Seymour Hersh, Chain of Command (2004) at 2.

[4]   Danner at 119-20.  See, e.g. 42 U.S.C. § 1395w-22, x, dd.  (The language of the statute may have been slightly changed in the interim.

 [5]   Danneker at 153-54, quoting S. Moore, Torture and the Balance of Evils, 23 Israel L.Rev. 280, 323 (1989), which Bybee claims summarizes the belief of “leading scholarly commentators.”

[6]   Chain of Command at 48.

[7]   In fairness, as http://www.meforum.org/article/636 comments, Hersh’s authority for the circulation of the book is thin.  But at least we have, as this website establishes, Norvell B. deAtkine’s introduction to a recent reprint, along with word that deAtkine assigned the book in training Green Berets at the John F. Kennedy Special Warfare School.  See also http://slate.msn.com/id/2101328 , viewed 8/15/05. 

 [8]  The Army’s 2004 Fay-Jones Report  at 57 et seq.

 [9]   See generally http://icasualties.org/ .

Copyright (c) Jack L. B. Gohn

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One Comment

  1. Bauer is brilliant, I really hope they should hurry up with the movie if they’re going to get on with it!