- The impulse to torture had a clear motivation: Cheney and Rumsfeld were increasingly desperate to find evidence that would support their decision to invade and occupy Iraq.
The push for application of torture techniques occurred as the Bush administration scrambled to come up with evidence to support its claims that Iraqi dictator Saddam Hussein had links to Al Qaeda or was pursuing the development of Weapons of Mass Destruction (WMD). Two major spikes in the use of the harshest techniques occurred in the weeks just before the Iraq invasion and the couple of months after the occupation of Iraq had begun. The first spike coincides with a period of difficulty with America’s principal ally, Britain, shortly following the famous Washington meeting between President Bush and Prime Minister Tony Blair in which the latter expressed concern about the lack of evidence supporting claims about a WMD program. Blair had been informed by his attorney general, Lord Peter Goldsmith, that the legal case for invading Iraq was exceedingly tenuous and badly needed to be bolstered with evidence showing an imminent threat coming out of Saddam Hussein’s Iraq. Also in this period, Vice President Cheney was doing his best to make this case by talking up evidence that proved specious—including reports of a meeting in Prague between an Al Qaeda figure and an Iraqi diplomat.
The new documents make plain that interrogators using the new harsh techniques, including waterboarding, were pushing their subjects for information that would justify the Iraq War. For instance, Major Paul Burney, a medical professional attached to interrogation efforts at Guantánamo, told investigators that “we were there a large part of the time we were focused on trying to establish a link between Al Qaeda and Iraq and we were not being successful in establishing a link between Al Qaeda and Iraq. The more frustrated people got in not being able to establish this link… there was more and more pressure to resort to measures that might produce more immediate results.” Numerous other sources involved in the interrogation effort recorded the same intense pressure to secure “results” that would justify a decision that had already been taken in Washington to invade Iraq.
In the end, Secretary of State Colin Powell was sent to the United Nations to make the case for an invasion of Iraq. The crown jewel of his evidentiary case turned on claims supplied by Ibn al-Shaykh Al-Libi that Saddam Hussein had trained Al Qaeda operatives in the use of chemical weapons. Al-Libi had been tortured using the new techniques to secure this evidence. It was subsequently determined to be false—offered up by Al-Libi to escape the torments to which he was subjected with the full understanding that this was what his interrogators wanted to hear. By curious coincidence, as Powell delivered his speech to the UN Security Council, a Judiciary Committee hearing room emptied out, and the nominee then under consideration got a free pass to confirmation to a lifetime appointment on the federal bench. His name was Jay Bybee, and more than a year later the public would learn that he had been a principal author of the torture memoranda.
The new reports make clear that torture was used to secure information to justify the invasion of Iraq, but—just as experts from the military and the FBI warned—the information proved false. America’s credibility on the international stage was seriously damaged as a result.
- The torture trail started and ended in the White House.
The Bush administration went to great lengths to fabricate a narrative under which it agreed to demands from interrogators on the ground to allow the use of harsher methods, effectively “removing the shackles” on their interaction with prisoners. But the Senate Armed Services Committee report shows that the effort to introduce these techniques dates from 2001, before there were any prisoners. It also shows that these techniques emanated from the White House and specifically from the office of Vice President Cheney. Finally, it documents a protocol that was in effect governing the use of the techniques. Interrogators would propose a full program of torture techniques to be applied to an individual prisoner. This proposal would be vetted and approved by higher-ups in the CIA (including the senior CIA officials who, not coincidentally, vehemently opposed disclosure of information surrounding their own engagement), and then it would go to the White House where discussions occurred in the National Security Council. Formal sign-off occurred by National Security Adviser Condoleezza Rice, involving her lawyer, John Bellinger. President Bush and Vice President Cheney are also recorded as having been informed and having approved its use. If the torture story is therefore a tale involving a “handful of bad apples,” then, the “bad apples” were sitting at the very top of the government. - Experts advised the administration lawyers that their opinions on torture were wrong and possibly criminal in nature and the lawyers attempted to destroy evidence of this fact.
Contrary to the uninformed assertion of Washington Post columnist David Broder that the “memos on torture represented a deliberate, and internally well-debated, policy decision, made in the proper places,” the newly released documents are filled with evidence that military law experts and others repeatedly warned the Bush administration, and particularly its lawyers, that the techniques which were being introduced constituted torture and that torture was a federal crime, punishable with penalties up to capital punishment in cases in which death occurred (and it did). This helps explain why White House counsel Alberto Gonzales, in a memorandum advising President Bush to issue a determination that the Geneva Conventions did not apply, presented his fear that prosecutors in the future might bring war crimes charges against Bush administration officials (a presidential determination that Geneva did not apply would make it more difficult for the prosecutors to make their case, Gonzales reasoned).
In addition, a senior military lawyer tells me that he directly confronted one of the torture memo writers advising him that the techniques proposed would be viewed by most experts as criminal in nature. He insisted that the memo be rewritten to reflect this risk. But the memo writer refused, he states. Phillip Zelikow, a senior counselor to Condoleezza Rice at the State Department, also described a memorandum he wrote warning of risks associated with the torture memoranda. He explained last week that an extraordinary effort was launched by the Bush White House to round up and destroy all copies of his memo. Prosecutors would probably characterize all of this as reflecting mens rea—a state of guilty mind—a realization by the torture memo writers that they were engaged in a criminal act.
Why did the memo writers issue their opinions in the form that they did without signaling the risks of criminal law involved in the scheme that the White House was implementing? It’s likely that they were acting under instructions to issue “clean opinions,” which would make it easier for the White House to act and provide more effective insulation from criminal prosecution to those who received the memos. Note that both President Bush and Vice President Cheney went out of their way in their exit interviews to claim that they made their decisions in reliance on the advice of their lawyers.
See more stories tagged with: politics, iraq, cia, torture, al qaeda, dick cheney, afghanistan, bush administration, karl rove, guantanamo, abu ghraib, george bush, barack obama, john mccain, wmd, donald rumsfeld, criminal, justice department, waterboarding, defense department, scott horton, john yoo, prosecutions, george w bush, jay bybee, sere, peggy noonan, office of legal counsel, torture memos, scott horton daily beast, jack goldsmith, alberto fujimori, john warner and lindsey g, myth and reality about to, torture prosecutions, justice department office, lord peter goldsmith, major paul burney
Scott Horton is a law professor and writer on legal and national security affairs for Harper's Magazine and The American Lawyer, among other publications.
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