McClatchy does a good job outlining the “omissions, exaggerations and misstatements” in former Vice President Dick Cheney’s speech at the American Enterprise Institute yesterday. (That’s via Attaturk.) For real granular detail, check out Dan Froomkin’s take at Neiman Watchdog. In particular, Froomkin takes on Cheney’s debunked claim that there can be no parallel drawn between the “disgraces of Abu Ghraib with the lawful, skillful, and entirely honorable work of CIA personnel.”
First off — and you know what, just read Fred Kaplan for a rebuttal to the dishonest phraseology there — we can stipulate that no one in the Bush administration wanted soldiers to, say, menace Iraqi detainees with dogs or put panties on their heads or smear them with excrement. But they’re responsible for how their redefinitions of torture were going to squeeze the torture toothpaste out of the legal tube, and once out, it smeared across the sink of the national security apparatus. (I regret the analogy already.) Let’s explore this, taking only the most generous interpretations of the Bush administration.
Froomkin, relying on “Torture Team” author Philippe Sands, points to the Senate intelligence committee’s narrative about the April to July 2002 meetings between lawyers for the CIA, the National Security Council and the Justice Department’s Office of Legal Counsel concerning the interrogation of al-Qaeda captive Abu Zubaydah. Those meetings, fueled by torture advocacy from a CIA contractor and SERE psychologist named James Mitchell from the black site where Abu Zubaydah was held, led to the Office of Legal Counsel’s Aug. 1, 2002 memos blessing harsh interrogations. Now: notice who’s not in those meetings. That’s right — Defense Department counsel Jim Haynes. Haynes can plausibly claim he wasn’t in the room when the Bush administration aired controversies over how to interrogate Abu Zubaydah, or when it parsed what was and wasn’t torture. All he would have seen was the end product: the OLC August 2002 memorandum justifying torture. And that memo, Froomkin reminds us, was said not to be controlling on the administration — merely an academic exercise, in the portrayal of Alberto Gonzales in 2004, after its release. So let’s assume that for now.
Ah, but in September 2002, CIA lawyer Jonathan Fredman — by his own admission — was brought into the Defense Department’s Guantanamo Bay detention facility to discuss what was legally permissible for the CIA in interrogations. Before that meeting, lawyers at Guantanamo, who weren’t read into the spring 2002 interrogation deliberations, had no way of knowing what authorizations the CIA enjoyed. (There was a CIA contingent at Guantanamo in the detention center’s early years. Its activities have gone unexplored.) But afterwards, according to the Senate Armed Services Committee’s 2008 bipartisan report into the origins of interrogation and detention policy for the Defense Department, Guantanamo officials requested authorization for a passel of similar interrogation techniques up through their chain of command, reaching the Office of the Secretary of Defense by the fall. After meeting with uniformed resistance to such approval — the services’ lawyers considered it a dangerous precedent that would place U.S. troops in legal jeopardy; and even more jeopardy if captured by an enemy — Haynes told a Pentagon working group on detentions and interrogations to use an updated version OLC’s August 2002 memo as the “controlling authority for all questions of domestic and international law.” (That’s according to the Senate committee’s report, pages 118-120.) John Yoo from OLC produced that memo, signed March 14, 2003.
All of a sudden, a determination of what was legal for the CIA in interrogations now guided the Pentagon in interrogations. Remember, we’re still assuming that Haynes didn’t know that was controversial. We’re looking on the sunny side here! Navy general counsel Alberto Mora told the Senate that any contributions from working group members “began to be rejected if they did not conform to the OLC guidance.” The lawyer for the chairman of the Joint Chiefs of Staff described herself as “very angry” after Haynes’ office told her to rely on that memo. On April 16, 2003, Defense Secretary Donald Rumsfeld issued a new Guantanamo guidance for interrogation incorporating the OLC-fueled legal advice. “Stress positions,” dietary manipulation, sleep deprivation and other techniques approved for the CIA were now official policy for Guantanamo.
Within months, concerns over the efficacy of interrogations in Iraq led the commander of the Guantanamo Bay detention facility, Maj. Gen. Geoffrey Miller, to visit Iraq from Aug. 31 to Sept. 10, 2003 and deliver to the commanding general there, Lt. Gen. Ricardo Sanchez, instructions to “Gitmo-ize” Abu Ghraib. At the same time, Abu Ghraib’s interrogations chief, Capt. Carolyn Wood, who had served as the interrogation operations officer at Afghanistan’s Bagram detention facility, submitted a “wish list” of interrogation techniques to her chain of command. This is what the Senate Armed Services Committee’s report had to say about that, on page 170 of its report:
Techniques in CPT Wood’s proposed policy can be traced back to the [Special Mission Unit Task Force] in Iraq to Afghanistan and, ultimately, to techniques authorized for use at GTMO by Secretary Rumsfeld in December 2002. The GTMO techniques were, in turn, influenced by techniques used by the Joint Personnel Recovery Agency and the military service SERE schools to train U.S. personnel to resist illegal enemy interrogations.
Sanchez, on Sept. 14, 2003, issued a new interrogation policy for Abu Ghraib after Miller’s visit, incorporating Wood’s request and the “Gitmo-ization” rules. Central Command was so shocked by its call for “military working dogs, stress positions, sleep deprivation, loud music, and light control” that it ordered him to revise the policy, which he did on Oct. 12, taking away most of those techniques, but adding, “Should working dogs be present during interrogations, they will be muzzled and under the control of a handler at all times to ensure safety.” Dog teams arrived at Abu Ghraib; lax controls over the separation between prison guards and prison interrogators broke down; and what happened at Abu Ghraib between September and December 2003 — “numerous incidents of sadistic, blatant and wanton criminal abuses,” as an investigator, Maj. Gen. Antonio Taguba determined — was the result.
Notice that this is a straight line between the the CIA interrogation program at Abu Ghraib, moving like a game of telephone. At each stage, an important safeguard or restriction assumed at an earlier stage — the techniques apply only to the CIA; the techniques are to be used only on Geneva-exempted enemy combatants; the techniques are to be applied only by interrogators — breaks down. Not once do you have to assume that the Bush administration’s principals *wanted *abuse to happen to reach this conclusion. This is why the law exists, after all: to prevent unintended consequences by well-meaning individuals that veer off into horror. Redefining the law on torture leads to what a 2004 Pentagon investigation called the “migration” of so-called “enhanced interrogation” techniques — even if that investigation didn’t have any mandate for discovering that the origins of those techniques came from CIA programs approved at the highest levels of the Bush administration.
Now, however, I’ve spent about two hours and almost 1200 words chasing an inaccurate Dick Cheney claim down the rabbit hole. So I credit him with that victory. He makes an outlandish and misleading claim; I scramble to point out what’s wrong with it. Nothing I’ve written is particularly new or unfamiliar to the public record. But that doesn’t stop Cheney from saying what he says.
*TWI is on Twitter. Please follow us here. *
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