Joshua L. Dratel

How the establishment of Guantánamo Bay corrupted our laws and policies from the outside in

In January 2002, the Guantánamo Bay Detention Facility in Cuba opened its gates for the first 20 detainees of the war on terror. Within 100 days300 of them would arrive, often hooded and in those infamous orange jumpsuits, and that would just be the beginning. At its height, the population would rise to nearly 800 prisoners from 59 countries. Eighteen years later, it still holds 40 prisoners, most of whom will undoubtedly remain there without charges or trial for the rest of their lives. (That’s likely true even of the five who have been cleared for release for more than a decade.) In 2013, journalist Carol Rosenberg astutely labeled them “forever prisoners.” And those detainees are hardly the only enduring legacy of Guantánamo Bay. Thanks to that prison camp, we as a country have come to understand aspects of both the law and policy in new ways that might prove to be “forever changes.”

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A Path Paved with Bad Intentions

This is an excerpt from 'The Torture Papers: The Road to Abu Ghraib (Cambridge University Press),' edited by Karen J. Greenberg and Joshua L. Dratel.

While the proverbial road to hell is paved with good intentions, the internal government memos collected in this publication demonstrate that the path to the purgatory that is Guantanamo Bay, or Abu Ghraib, has been paved with decidedly bad intentions. The policies that resulted in rampant abuse of detainees first in Afghanistan, then at Guantanamo Bay, and later in Iraq, were a product of three pernicious purposes designed to facilitate the unilateral and unfettered detention, interrogation, abuse, judgment, and punishment of prisoners: (1) the desire to place the detainees beyond the reach of any court or law; (2) the desire to abrogate the Geneva Convention with respect to the treatment of persons seized in the context of armed hostilities; and (3) the desire to absolve those implementing the policies of any liability for war crimes under U.S. and international law.

Indeed, any claim of good faith – that those who formulated the policies were merely misguided in their pursuit of security in the face of what is certainly a genuine terrorist threat – is belied by the policy makers' more than tacit acknowledgment of their unlawful purpose. Otherwise, why the need to find a location – Guantanamo Bay – purportedly outside the jurisdiction of the U.S. (or any other) courts? Why the need to ensure those participating that they could proceed free of concern that they could face prosecution for war crimes as a result of their adherence to the policy? Rarely, if ever, has such a guilty governmental conscience been so starkly illuminated in advance.

That, of course, begs the question: what was it that these officials, lawyers and lay persons, feared from the federal courts? An independent judiciary? A legitimate, legislated, established system of justice designed to promote fairness and accuracy? The Uniform Code of Military Justice, which governs courts-martial and authorizes military commissions? The message that these memoranda convey in response is unmistakable: these policy makers do not like our system of justice, with its checks and balances, and rights and limits, that they have been sworn to uphold. That antipathy for and distrust of our civilian and military justice systems is positively un-American.

However, that distaste for our justice system was not symmetrical, as the memos reveal how the legal analysis was contrived to give the policy architects and those who implemented it the benefit of doubt on issues of intent and criminal responsibility while at the same time eagerly denying such accommodations to those at whom the policies were directed. Such piecemeal application of rights and law is directly contrary to our principles: equal application of the law, equal justice for all, and a refusal to discriminate based on status, including nationality or religion. A government cannot pick and choose what rights to afford itself, and what lesser privileges it confers on its captives, and still make any valid claim to fairness and due process.

The memoranda that comprise this volume follow a logical sequence: (1) find a location secure not only from attack and infiltration, but also, and perhaps more importantly in light of the December 28, 2001, memo that commences this trail, from intervention by the courts; (2) rescind the US' agreement to abide by the proscriptions of the Geneva Convention with respect to the treatment of persons captured during armed conflict; and (3) provide an interpretation of the law that protects policy makers and their instruments in the field from potential war crimes prosecution for their acts. The result, as clear from the arrogant rectitude emanating from the memos, was unchecked power, and the abuse that inevitably followed.

The chronology of the memoranda also demonstrates the increasing rationalization and strained analysis as the objectives grew more aggressive and the position more indefensible – in effect, rationalizing progressively more serious conduct to defend the initial decisions and objectives, to the point where, by the time the first images of Abu Ghraib emerged in public, the government's slide into its moral morass, as reflected in the series of memos published in this volume, was akin to a criminal covering up a parking violation by incrementally more serious conduct culminating in murder.

The memos also reflect what might be termed the "corporatization" of government lawyering: a wholly result-oriented system in which policy makers start with an objective and work backward, in the process enlisting the aid of intelligent and well-credentialed lawyers who, for whatever reason – the attractions of power, careerism, ideology, or just plain bad judgment – all too willingly failed to act as a constitutional or moral compass that could brake their client's descent into unconscionable behavior constituting torture by any definition, legal or colloquial. That slavish dedication to a superior's imperatives does not serve the client well in the end and reduces the lawyer's function to that of a gold-plated rubber stamp.

Nor does any claim of a "new paradigm" provide any excuse, or even a viable explanation. The contention, set forth with great emphasis in these memoranda, that al Qaeda, as a fanatic, violent, and capable international organization, represented some unprecedented enemy justifying abandonment of our principles is simply not borne out by historical comparison. The Nazi party's dominance of the Third Reich is not distinguishable in practical terms from al Qaeda's influence on the Taliban government as described in these memos.

Al Qaeda's record of destruction, September 11th notwithstanding – and as a New Yorker who lived, and still lives, in the shadow of the Twin Towers, which cast a long shadow over lower Manhattan even in their absence, I am fully cognizant of the impact of that day – pales before the death machine assembled and operated by the Nazis. Yet we managed to eradicate Nazism as a significant threat without wholesale repudiation of the law of war, or a categorical departure from international norms, even though National Socialism, with its fascist cousins, was certainly a violent and dangerous international movement – even with a vibrant chapter here in the United States.

Indeed, like the Nazis' punctilious legalization of their "final solution," the memos reproduced here reveal a carefully orchestrated legal rationale, but one without valid legal or moral foundation. The threshold premise here, that Guantanamo Bay is outside the jurisdiction of the U.S. courts, was soundly rejected by the Supreme Court last June in Rasul v. Bush, and the successive conclusions built upon that premise will, like the corrupted dominoes they are, tumble in due course. There they will join the other legally instituted but forever discredited stains upon U.S. legal history: the internment of Japanese during World War II, the treatment of Native Americans, and slavery.

Review of the memoranda reveals that not all the players were villains, though. There were dissenters from this march toward ignominy. The Department of State pointed out the perils – to U.S. service personnel principally, who would likely be treated reciprocally if captured – of not applying the standards of the Geneva Convention, and the contradictory position of the U.S. with respect to the status of the Taliban as the existing government of Afghanistan. Military officers also manifested an implicit reticence, and even incredulity, in demanding explicit authority and direction before implementing the full range of "counter-resistance" techniques. Yet, unfortunately, the policy makers to whom they appealed were only too willing to oblige, and to ignore the cautions communicated by the State Department.

It would be remiss of those of us who have compiled these memoranda and reports to leave them as the record without offering some solutions. The most important change would be the recognition by the Executive that unilateral policy fails not only because it ignores the checks and balances of the other branches, but also because it creates policies distorted by only a single, subjective point of view. Even failing that voluntary reform, Congress must exercise its authority, through oversight and legislation, just as the courts have invoked their power of judicial review.

Lawyers and public officials need to be instructed, in school and on the job, to be cognizant of the real-life consequences of their policy choices. Government is not some academic political science competition, in which the prize goes to the student who can muster coherent doctrinal support, however flimsy, for the most outlandish proposition. Here, real people suffered real, serious, and lasting harm due to violations of whatever law applies – U.S., international, common, natural, moral, or religious – committed by our government, in our name.

As citizens, we surely enjoy rights, but just as surely responsibilities as well. We cannot look the other way while we implicitly authorize our elected officials to do the dirty work, and then, like Capt. Renault in Casablanca, be "shocked" that transgressions have occurred under our nose. The panic-laden fear generated by the events of Sept. 11th cannot serve as a license – for our government in its policies, or ourselves in our personal approach to grave problems – to suspend our constitutional heritage, our core values as a nation, or the behavioral standards that mark a civilized and humane society. That type of consistency in the face of danger, in the face of the unknown, defines courage, and presents a road map for a future of which we can be proud.

37 Questions for Donald Rumsfeld

The "torture memos," as they have come to be known, reveal much about the current administration. They point to a level of secrecy matching, or even surpassing, any sought or achieved by the executive branch in prior eras, even during wartime. They point to a lack of concern for accountability that veers far from previously acknowledged limits on unchecked executive power. They deliberately disregard, even nullify, the balance-of-powers doctrine that has defined the United States since its inception. Essentially, much of what has been put in place by the Bush administration in the wake of 9/11 has relied on the fear of terror as a means to establish a new doctrine of state; it is a doctrine that, before the attacks on the World Trade Center and the Pentagon, had lingered in the outer corridors of power. Much of the Patriot Act, for instance, had already been drafted before 9/11; and the proposal for the Department of Homeland Security was also in draft form at that time. So, too, were plans for a war in Iraq.

The torture memos developed inside the White House by a task force of lawyers headed by presidential confidant and White House Legal Counsel Alberto Gonzales are important, and not just as evidence of a policy that disregards human rights and reciprocity in the treatment of soldiers, civilians, and prisoners. The torture memos are also – perhaps primarily – important because they reveal the most basic attitudes with which the administration greets the Congress, the courts, the American public, and the world at large.

One of the chief figures in turning legal questions on torture into policy in the matter of the treatment of prisoners has been Secretary of Defense Donald Rumsfeld, who oversaw the approval of harsh interrogation methods in 2002 and who became the personally responsible party for approving or disapproving the use of coercive interrogation and "category three" torture after the spring of 2003. It seems only apt and fitting, then, that he, as well as Alberto Gonzales, be brought before Congress and asked questions about this policy and his role in it.

Based on a careful reading of the hundreds of pages of "torture memos" that poured out of the White House, the thousands of pages of military reports, investigations, and original documents that have emerged from Abu Ghraib prison in Iraq, as well as the flood of recent FBI e-mails and prisoner complaints that have emerged from Guantanamo prison in Cuba, we might – as a lawyer and an historian who have been working in this area for the last two years – suggest the following series of questions for Congress:

1. Does torture work? Given the detailed attention shown in the White House memos to describing three levels of interrogation (from questioning to physical abuse) to be applied in the war on terror, is there an underlying assumption that torture in fact really works? That it is more effective than ordinary means of questioning prisoners? And, if so, what does it work to produce? Have you considered whether it is a means of venting frustration or a means of obtaining reliable information? Is there clinical, verifiable evidence that torture produces better information more quickly and more accurately than other methods of interrogation? Did your discussions of torture involve consulting experts in Israel, the United Kingdom, Egypt, and elsewhere? If so, what did those sources have to say in recommending torture? Or was the administration convinced of the efficacy of torture before it began drawing up its legal documents?

2. Assuming, for a moment, that torture is indeed effective, what is the difference between this conflict, and these detainees, and previous conflicts and prisoners? After all, the rationale that torture is necessary to save lives, if true, applies to any war. Surely the torture of German and Japanese soldiers – particularly officers – in World War II could have yielded information that might have "saved lives." Wouldn't this then apply no less to U.S. soldiers and officers – either in or, as in the case of Special Forces troops, out of uniform – captured by the enemy? Indeed, why would it not apply to any situation in which lives are in the balance: cigarette manufacturers, polluters, ordinary criminals? Wouldn't torturing them for information "save lives"?

3. Why was one of the first tasks of your administration finding a place – Guantanamo Bay – that was meant to be beyond the reach of the courts? Do you fear review by the courts? Why do you dismiss the role of the courts and ordinary law enforcement in eliciting information from prisoners in the war on terror? Isn't it possible that the art of interrogation, practiced by law enforcement officers and professional lawyers, might in fact elicit more important and more accurate information in assessing the motives, networks, and plans of terrorists than, say, dogs at Guantanamo Bay or waterboarding in some CIA holding area? What exactly was it you felt it was so important to keep secret from the courts?

4. In the war on terror, do you see the Department of Justice as essentially an adjunct of the Department of Defense? Is there an expectation that what the Pentagon deems necessary in the war on terror and the war in Iraq will simply be justified after the fact by the Justice Department? What is your response to observers who have noted that the lawyers in the White House's Office of Legal Counsel acted more like corporate lawyers than protectors of the U.S. Constitution; that they followed the corporate model of providing arguments and justifications for their superiors – in this case, justifying secrecy, torture, and the disregard of the Geneva Conventions – rather than approaching them objectively and independently as matters of legal inquiry?

5. Do you think that terrorists and alleged terrorists deserve to be tortured as a form of punishment? In a Nov. 27, 2002 memo on acceptable interrogation methods, you personally handwrote the following comment: "I stand for 8-10 hours a day. Why is standing [as a counter-resistance technique] limited to 4 hours?" Is there a sense that the prisoners in Guantanamo, though not yet tried, let alone convicted, deserve the punitive treatment they receive, including acts that may be outlawed internationally and in domestic law? Do you consider them, by virtue of their potential association with terrorists, to deserve fewer rights than others?

6. Can you address the timing of the development of a Bush administration torture policy and your decision to step away so quickly from the Geneva Conventions to which we are signatories? Why, as early as the fall of 2001, before you even had prisoners who might have been available for torture, was the Administration so willing to consider torture as a practice? Had such a policy been privately discussed prior to Sept. 11 and already deemed necessary to the security of the United States, and if so, what was the rationale for considering such a policy? What was your basis for concluding that traditional methods consistent with international law were a failure?

7. Why have you not consulted Congress on the question of torture? What role, if any, do you think Congress should play in overseeing either the treatment of military prisoners or the military commissions you are planning to set up to try them? In the August 2002 memo from the Office of Legal Counsel, Congress, it was claimed, did not have the power to prohibit torture if the president, acting as Commander in Chief, deemed it necessary – do you still agree with this, as Alberto Gonzales seems to, given his recent Senate testimony? Do you really think that, in times of war, the president has the power to do whatever he wants?

8. Why did the complaints from detainees like David Hicks and the Tipton Three, NGOs, the International Red Cross, military whistleblowers and other governments regarding the mistreatment of detainees fall on deaf ears for so long? The recently released FBI memoranda, and the recently unsealed court filings by Guantanamo detainees establish the existence of torture, abuse, and mistreatment beyond any doubt. Why did Pentagon investigations (of which there have now been so many) not uncover this abuse, and why didn't the investigators pay any attention to the claims made by knowledgeable outside parties?

9. If Alberto Gonzales were not facing confirmation hearings, would the government's position on torture have been revised, as it was just before he testified? Who or what precipitated the administration to suddenly change its definition of torture? How long has such a change been in the works? Who was responsible for that change, and who was involved in crafting the new definition(s)?


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