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They Went to Work Quickly

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The Dark Side:
The Inside Story of How the War on Terror Turned into a War on American Ideals

By Jane Mayer
Doubleday, 2008

It has become important to define what we mean when we speak of torture. Merriam-Webster, for instance, offers two distinct definitions. The first and most familiar is “infliction of intense pain (as from burning, crushing, or wounding) to punish, coerce, or afford sadistic pleasure.” The second is “distortion or overrefinement of a meaning or argument.” It is by way of the second definition that the first was transformed – tortured, in fact, into something White House and Justice Department lawyers call “enhanced interrogation.” Armed with this legal casuistry, George W. Bush could utter a something like the following, which opens the tenth chapter of Jane Mayer’s The Dark Side, and he could be – at least by one definition – telling the truth:  

The United States is committed to the world-wide elimination of torture and we are leading this fight by example. I call on all governments to join with the United States and the community of law-abiding nations in prohibiting, investigating and prosecuting all acts of torture and in undertaking to prevent other cruel and unusual punishment…. Nowhere should the midnight knock foreshadow a nightmare of state-commissioned crime. The suffering of torture victims must end, and the United States calls on all governments to assume this great mission.

This statement was issued by the White House in March of 2003, on United Nations International Day in Support of Victims of Torture. By that time torture (we’ll be using its original meaning) was a legalized and even bureaucratized part of America’s “War on Terror,” a normal component of interrogation in Afghanistan and Guantanamo Bay that would soon spread into Iraq.

You wouldn’t know it today, but historically America’s place in the rollback of torture and POW abuse has been transformative. Mayer recounts that during the Revolutionary War, though brutality and even summary execution were normal for the British (who viewed the rebellious colonists as something akin to “illegal combatants”), George Washington

insisted that enemy captives must be given food and medical attention and be housed in conditions that were no worse than those of the American soldiers…. Washington’s orders, which became the backbone of American military doctrine until 2001, were not simply gestures of kindness or even morality. They sprang also from a shrewd calculation that brutality undermines military discipline and strengthens the enemy’s resolve.

Nearly ninety years later, a Columbia University professor named Francis Lieber developed a legal code during the Civil War which allowed prisoners of war to be held for the duration of hostilities and interrogated, but prohibited the infliction of suffering, indignity and “other barbarity.” This code was adopted by international conferences at The Hague in 1899 and 1907, progenitors of the Geneva Conventions. American practice was the template for international law.

The United States was an active participant in the 1929 Geneva Convention, and in the second and more comprehensive treaty authored four years after the Holocaust. There American negotiators “advocated that the rules be absolutely clear, even specifying food rations, barracks conditions, and athletic requirements” and sought to have these provisions applied to “all categories of people caught in international armed conflicts.” In 1984 Ronald Reagan signed the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, a treaty whose very name is a rebuke to sophistry and semantic games. It says that there are “no circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency” that could justify torture or “other acts of cruel, inhumane or degrading treatment.” Torture is defined broadly and simply as “severe pain or suffering, whether physical or mental.”

Mayer sprinkles this history throughout the narrative to great effect. Most of the book is preoccupied with the first few years after the attacks of 9/11, but this is no omission on the author’s part; most of the changes the Bush Administration made – redefining torture, putting into practice extreme theories of Presidential power, expanding the scope of the rendition program, creating a new legal framework for prisoners of war and domestic spying – were accomplished with stunning alacrity. The atmosphere in the aftermath of al-Qaeda’s attacks was tense. A minatory fog loomed across the Atlantic and the pressure to get information was overwhelming. Mayer devotes more than a few pages to this contextualizing, and she is perhaps too fair in doing so. War has always been the best excuse for the infringement of liberties, but it’s still a poor one.

Decisions were made in rapid succession after September 2001 and Mayer’s narrative is expertly told; The Dark Side moves quickly but clearly. Only hours after the attacks, a small group of important people were already discussing the extension of Presidential power. Dick Cheney was in the Emergency Operations Center beneath the West Wing talking to his legal counsel, David Addington. By the end of the day Addington had brought in Tim Flanigan, a lawyer in the White House Counsel’s Office (subordinate to the weakling Alberto Gonzales), and the infamous John Yoo, then a deputy chief in the Justice Department’s Office of Legal Counsel, which drafts opinions on the legality of executive policy.

What these men shared was a conviction that Presidential power had been unduly curtailed after Watergate. Yoo specialized in the President’s war-time powers, and he likened them to those of British kings before Parliament’s neutering. Addington had spent much of his time as a CIA lawyer trying to limit Congressional oversight. Cheney, who served in the Ford Administration, told U.S. News & World Report that the years after Watergate were “the nadir of the modern presidency in terms of authority and legitimacy” and that restoring Presidential power “has been a continuing theme, if you will, in terms of my career.” As Mayer recounts, when asked for reference to his views on political power he told reporters to look at the Minority Report of a House select committee that investigated the Iran-Contra scandal. Cheney was a member of that committee and the report states, among other absurdities, that “the President has the Constitutional and statutory authority to withhold notifying Congress of covert actions under rare conditions.” Furthermore, the President “will on occasion feel duty bound to assert monarchical notions of prerogative that will permit him to exceed the laws.”

A detainee being transported at Guantanamo Bay, Cuba

According to Mayer, “both Bush and Cheney made clear they wanted to be as aggressive as the law would allow. But it was left to their deputies, the lawyers, to fill in the details.” The focus, naturally, was on wartime powers. “The legal doctrine that Addington espoused [was] that the president, as commander in chief, had the authority to disregard virtually all previously known legal boundaries if national security demanded it.” This idea, which became known as “The New Paradigm” (Mayer doesn’t give us the name’s provenance), could only be enacted in a time of war; thus the need to declare not a police action or a vague “fight against” something but a War on Terror.

One of the most frightening aspects of The Dark Side is how few people controlled policy and how pathetically weak Bush was. He makes fewer appearances in the book than one would think. What results is a portrait in absentia, and vindication for those who ridiculed his incuriosity and Manichean simple-mindedness. One passage in particular is worth quoting at length:

Famously, Bush would describe himself as “The Decider.” But Cheney had a more sophisticated understanding of how Washington works. Without drawing attention to himself, he often drastically narrowed Bush’s choices. In the White House, there are two spigots controlling the president’s choices. One is the paper flow – determining what the president gets to read. The other is access – determining whom he sees and talks with. Cheney almost invariably had the final word with the President. But Addington frequently had the final say about the paperwork that reached him…

Addington’s would be the last box before paperwork reached the President. According to another lawyer on the White House staff, he would “review every proposed executive order before it reached the President for his signature. Frequently he would single-handedly rewrite the entire thing, even though it had already been vetted by the interagency process. He’d slash a red line straight through it and start over from scratch, making it read the way he wanted. Only then would he send it on to the President…”

From the start, Bush delegated much of the national security portfolio to Cheney, handing the Vice President an unusually important responsibility. The Vice President’s office thus saw virtually every important document relating to national security.

If Cheney is the most powerful Vice President in history, Addington’s power is ludicrously out of proportion to his office. But Cheney was given the prerogative, so Addington became the head of a small coterie of lawyers, dubbing themselves the “War Council,” who shaped the legal justification for Bush’s new powers. Addington kept his circle of co-conspirators – that is what you call such people – small; Yoo, a deputy in the Office of Legal Council, took his orders from the White House, not his boss Jay Bybee, after whom one of Yoo’s torture memos is named. Alberto Gonzales, first White House counsel and then Attorney General, was the cipher; spineless and completely out of his depth intellectually, he was a rubber stamp. Tim Flanigan and Jim Haynes, lawyers in the White House and the Defense Department, rounded out the group. They went to work quickly.

On September 14, 2001, Senate Majority Leader Tom Daschle was poised to put to vote an authorization for Bush to go to war against whoever had attacked the country three days previous. Congress had turned back an earlier White House request to expand the mandate to include absolutely anyone whom the President deemed a terrorist. Then Daschle received another request: this time the President was asking for the words “in the United States” to be added to hiss theater of war. The implications were obvious: the President could deploy the military and intelligence agencies domestically; any American citizen could be declared an enemy of the state, and who knows what else. Daschle refused, and the more limited resolution passed unanimously in the Senate and 420-1 in the House.

Unbeknownst to Congress, the War Council was composing a series of secret memos that would give the President all he’d asked of Daschle and more. They argued that the President had virtually unlimited wartime powers. Since he’d just been authorized to go to war, Bush could, in his role as Commander in Chief, assume for himself all the powers Congress had denied him. Part of the memo read: “The government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties…. We think that the Fourth Amendment [protecting against unreasonable search and seizure] should be no more relevant than it would be in cases of invasion or insurrection.” Among the specific measures the President could take were warrant-less wiretaps, illegal since 1978.

On September 17, the CIA received notice that virtually all the new powers it requested from the President had been granted – one day after it had requested them. Among them, according to Mayer, was the creation of “secret paramilitary death squads authorized to hunt and kill prime terror suspects anywhere on earth,” and the ability to capture and interrogate suspects, in any manner they saw fit. There was even a plan to send Osama bin Laden’s head to the White House in a box. In order to provide the President with deniability, operational authority for each mission was granted to CIA Director George Tenant. The only request denied the CIA was a lift on the ban on domestic spying, a rule in place since its founding. Domestic spying would be carried out by other agencies.

The President was required by law to notify only four people outside his administration of covert intelligence operations – the chairmen and ranking minority members of the Senate and House Intelligence Oversight Committees – and they were sworn to secrecy. On October 25, they were informed of the NSA’s new Terrorist Surveillance Program, which allowed the agency to “intercept phone calls and other communications – including private e-mails – to and from the United States without first getting a warrant.” All this derived from a memo written by Yoo, never released to Congress or the public, which put such warrant-less domestic spying under the rubric of the President’s war time powers (recall that the White House neglected to inform anyone of what their view of those powers was). Yoo’s boss, Attorney General John Ashcroft, was unaware of the memo, as he was of most of Yoo’s work regarding executive power. The memorandum was so secret that the NSA’s own lawyers never saw it. In other words, if asked the NSA couldn’t explain to anyone the legal justification for the actions it was taking.

As the war in Afghanistan began, the White House had to figure out what it would do with the people it captured. A new legal category was invented, “illegal enemy combatants,” who would be outside the purview of the Geneva Conventions. An Office of Legal Counsel memo, dated November 6, put the suspects in the charge of the military and stated that the President had the “inherent authority” to establish military tribunals. Prisoners were not entitled to “receive the protections of the Geneva Conventions or the rights that laws of war accord to lawful combatants.” It declared that the President would obey international law only if he wished to. Cheney presented this memorandum to the President at lunch on November 13. By the time lunch was over, the memo had Bush’s approval…  

The body of a detainee killed in Abu Ghraib prison

While the new American system of torture was coming into its own, the White House began a program of (in someone’s memorable phrase) “outsourcing torture.” Extraordinary rendition, as it is called, dates back as far as the Reagan Administration. It was now expanded and its constraints were loosened. Perhaps The Dark Side’s greatest strength is Mayer’s low-key style; facts are left to speak for themselves and emotion is mostly left to the reader. Here she explains how the rendition program operated:

A glimpse surfaced in Sweden, for instance, at 9 o’clock on the moonless evening of December 18, 2001. With little warning, a half-dozen masked men in black whisked two Egyptian asylum seekers, Muhammad Zery and Ahmed Agiza, into an empty office at Stockholm’s Bromma Airport. Working in swift, synchronized lockstep, the masked men cut off the Egyptians’ clothes with scissors and placed the shreds in bags. They forcibly administered sedatives by anal suppository, swaddled the prisoners in diapers, and dressed them in orange jumpsuits and hoods, with no cutouts for their eyes…the suspects were placed in handcuffs and leg irons and photographed. Then, according to a declassified Swedish government report, the men were flown to Cairo on a U.S.-registered Gulfstream V jet.

Rendered suspects were also taken to American military bases in Afghanistan or Guantanamo.

In the meantime, the CIA had won a fight with the FBI over who would run the interrogation process with the prisoners America kept, this despite the FBI’s greater expertise in the area (to give an idea of how poorly manned the CIA was, a year into the Iraq War the CIA station in Baghdad had only 4 Arabic speakers out of a staff of 300). The CIA had fewer constraints on their interrogation policy (at least four prisoner deaths have been attributed to them in Afghanistan alone), and standards would soon decline in the military as well. On January 8 Bush decided that the Geneva Conventions didn’t apply to prisoners in the “War on Terror,” and ten days later Rumsfeld sent an order to the Joint Chiefs of Staff declaring that the military no longer had to follow Convention guidelines. General Tommy Franks abandoned the prisoner-screening process he’d set up under Geneva’s Article 5.

A week later a memo signed by Alberto Gonzales told (and subtly praised) the President: “As you have said, the war against terrorism is a new kind of war…. In my judgment, this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners.” Those “strict limitations” were “quaint.” Mayer notes that “the tone of the memo was caustic, not unlike its true author, who was later revealed to be Addington,” known almost universally to be something of a jerk. Colin Powell’s Chief of Staff, Colonel Lawrence Wilkerson, commented acidly on the President: “You can slip a lot of crap over on someone who doesn’t read a lot or pay attention to the details if you have no scruples, and David Addington doesn’t.” Geneva had been cleared away, and what remained was confusion, a few token restrictions and pressure to get information.

Perhaps the most infamous memo of all was issued on August 1, 2002. Signed by Assistant Attorney General Jay Bybee, it was written mostly by John Yoo. The OLC, says Mayer, “redefined the crime of torture to make it all but impossible to commit.” The memo defined torture as “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” To qualify as torture, mental suffering must “result in significant psychological harm,” and “be of significant duration, e.g., lasting for months or years.” The memo noted that “There [are a] significant range of acts that though they might constitute cruel, inhuman, or degrading treatment or punishment fail to rise to the level of torture.” And the finale: to torture, the infliction of pain must be the “precise objective” of the interrogator. So if the interrogator just wants to gather information, he can torture in order to get it, but he’s not really torturing, because he’s just gathering information.

One problem with torture is that no one can prove that it’s effective. Most of the evidence is to the contrary. The Dark Side is littered with such evidence, but these are the most egregious examples (the one’s we know of, at least). Take Maher Arar, a Canadian telecommunications engineer. Two terrorist suspects who had lived in Canada were tortured in Syria and had given his name. He was captured during a layover at JFK Airport in New York, questioned for 13 days, sent to Syria by way of Jordan, and tortured there for year until he corroborated the confessions given by the tortured suspects who had fingered him. All three confessions turned out to be false; Arar was released and awarded over $10 million by the Canadian government, but none from the United States, which kept his name on its terrorist watch list.

Mamdouh Habib was an Egyptian-born citizen of Australia who’d come to Pakistan in the summer of 2001 to find a less secular environment for his children. He was picked up by Pakistani security forces for being a “suspicious foreigner,” tortured for three weeks, then handed over to the CIA, who brought him to Egypt, where for six months he was tortured into multiple false confessions. On the strength of this “intelligence,” he was then handed back to CIA and transported to Guantanamo Bay, where he remained until he was released three years later in 2005, a day after his story made the front page of The Washington Post. The Pentagon, despite releasing him, claimed he received “al-Qaeda training” in, among other things, making false abuse allegations.

A water-boarding demonstration

The most disturbing example of torture’s inefficacy was the “enhanced” interrogation of Ibn al-Shaykh al-Libi, who actually was a terrorist. Bush hailed al-Libi as a model of what “enhanced interrogation” could accomplish. But all the useful information he’d given was given to the FBI, who ran their interrogations normally. The CIA took control, however, and packed him away to Egypt, where he was pressed particularly hard on the subject of Iraqi/al-Qaeda connections. Al-Libi told the Egyptians that three al-Qaeda figures (he used real names) had gone to Iraq to learn about nuclear weapons. It was a fabrication. The Egyptians wanted more, so he made up some more stuff about Iraqi training in bomb-making and biological and chemical weapons. This “intelligence” made it into an October 2002 speech by President Bush, and later into Colin Powell’s famous February 2003 address to the United Nations.

As war dragged on, detainees captured in Afghanistan and Iraq weren’t producing the information the White House wanted. Commanders on the ground pressed for permission to go further, to use new techniques and use different methods in combination. Approval from Rumsfeld was usually forthcoming. The CIA sought ways to improve their results as well. Among the places they looked was the military’s SERE (Survival, Evasion, Resistance, Escape) program. Mayer explains:

The theory behind it was that by subjecting U.S. soldiers to the worst treatment the world could mete out, but doing so in a limited and carefully controlled setting, the soldiers could inoculate themselves emotionally, increasing their chances of resisting should they ever be subjected to torture in real life.

Now these methods were to be put to use – “reverse engineered” – against people in American custody. Teams of SERE trainers were dispatched to Guantanamo Bay, to Afghanistan, and – when intelligence wasn’t forthcoming on Iraqi insurgents – to Iraq to teach CIA and paramilitary interrogators. The CIA dusted off its own body of research on torture, much of which came straight from Stalin’s Russia; during the Cold War their researchers had been fascinated by the KGB’s ability to produce false confessions. The irony never dawned on them.

I said at the outset that it was important to define torture. Still, the danger of abstraction is too great. It is even more important to picture what torture is like, to contemplate its essential barbarity. The Dark Side has so many descriptions of torture it’s nearly too much to bear, but Mayer hides what must be her own revulsion and lets the reader come to it naturally.

Those captured by commando teams were “hog-tied, stripped naked, photographed, hooded, sedated with anal suppositories, placed in diapers, and transported by plane to a secret location.” Prisoners were frequently kept naked for months at a time, chained for hours in painful positions that would produce swelling in the limbs. Temperature was alternated drastically, from “suffocating heat” to ice cold rooms where detainees might be doused with ice water. Many claim to have been kept in cells which were “bombarded with deafening sound twenty-four hours a day for weeks and even months. Usually the sounds were music, but a detainee named Moazzam Begg described hearing hysterical female screams from an unseen woman who he was led to believe was his wife.” Rooms were kept dark or blindingly bright for varying periods of time; meals alternated in size and were given erratically, or never came at all. Prisoners were beaten, water-boarded, administered drugs, kept in cages, kept on leashes, screamed at, threatened, had their families threatened, or were simply made to stand in the same spot for hours on end.

A detainee who spent time in pitch-black facility near Kabul, which detainees called the “Dark Prison,” told his lawyer that “The CIA worked people day and night for months. Plenty lost their minds. I could hear people knocking their heads against the walls and doors, screaming their heads off.” Another prisoner in the same facility attempted suicide three times by bludgeoning his own head against a wall. A former CIA official said of the agency’s interrogation program: “They were torturing people. No question. They did disgusting things to people. Their attitude was, ‘Laws? Like who the fuck cares?’”

Nearly as upsetting to the reader are the failures of dozens of good people who fought hopeless internal battles against institutionalized barbarity. All ultimately failed, and resigned or were fired or transferred. It seems their only tangible success is the information we now have. These stories pile upon one another. The book accumulates mass as it moves on; it weighs down and sickens the reader.

Even when this all came to light, after pictures from Abu Ghraib flashed across the world, policy did not change. Grim news appeared again, this time of a network of secret prisons around the globe, and Congress forced the torture-banning 2005 Detainee Treatment Act on President Bush. The Senate voted for the bill 90-9 and so a veto was impossible. But Bush had Addington pen a Presidential “signing statement” (Bush used scores of these during his term) which said that the President would only follow the law in so far as it was “consistent” with his role as commander in chief. And the Office of Legal Council produced another memo which stated that none of the CIA’s techniques were cruel, inhumane or degrading. This was designed to circumvent both the new law and a recent Supreme Court ruling that stated that detainee treatment had to “shock the conscience” of a court to qualify as “cruel and unusual punishment.” The memo simply said that the program would not shock many courts, and that was that.

Six months later the Supreme Court, in Hamdan v. Rumsfeld, ruled that Geneva Conventions applied to all prisoners in the “war on terror.” It was forceful rebuke.

Cheney and his staff, however, didn’t stop fighting. They went on to work closely with Congress to restore virtually every aspect of the earlier executive power they had exercised over the detainees, including sole control over the military commissions. Congress ratified most of the White House’s wishes in what came to be known as the Military Commissions Act….

One item that was “particularly important to Cheney…was the issue of retroactive ‘immunity’ from future criminal prosecution.” Not that such a provision matters. Before he leaves office, George W. Bush can simply issue a blanket pardon for every one involved; a final preemptive strike, if you will. Policy makers never go to jail, but Barack Obama has indicated that he will close Guantanamo Bay, end torture, review all and repeal many of the President’s secret decisions. We will see how much power he is willing to give up.

Greg Waldmann is a native New Yorker living in Boston with a degree in International Affairs.